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Koyukuk River Basin Moose Co-Management Team v. Board of Game (8/22/2003) sp-5728
Koyukuk River Basin Moose Co-Management Team v. Board of Game (8/22/2003) sp-5728
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,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
KOYUKUK RIVER BASIN MOOSE )
CO-MANAGEMENT TEAM, ) Supreme Court No. S-10513
)
Appellant, ) Superior Court No. 4FA-00-
777 CI
)
v. ) O P I N I O N
)
BOARD OF GAME, FRANK RUE, ) [No. 5728 - August 22, 2003]
in his official capacity as Commissioner)
of Alaska Department of Fish and )
Game, and STATE OF ALASKA, )
)
Appellees. )
________________________________)
Appeal from the Superior Court of the State
of Alaska, Fourth Judicial District,
Fairbanks, Mary E. Greene, Judge.
Appearances: Michael J. Walleri, Law Offices
of Michael J. Walleri, Fairbanks, for
Appellant. Kevin M. Saxby, Assistant
Attorney General, Anchorage, and Bruce M.
Botelho, Attorney General, Juneau, for
Appellees.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
EASTAUGH, Justice.
I. INTRODUCTION
We consider here whether the Alaska Board of Game
violated either the sustained yield principle of article VIII,
section 4 of the Alaska Constitution or Alaska's subsistence
statutes in managing moose hunting in part of the Koyukuk River
Basin. We affirm the superior court decision holding that there
was no violation. The Board of Game was within its discretion in
adopting a regulation that allowed for the issuance of "up to"
400 permits in a controlled use area that was part of two larger
Game Management Units.
II. FACTS AND PROCEEDINGS
This appeal concerns the validity of moose hunting
regulations for an area encompassing the Koyukuk Controlled Use
Area (KCUA). The KCUA is located in the lower portion of the
Koyukuk River drainage, and was established in 1979 to reduce the
participation of non-local hunters by prohibiting the use of
aircraft. The Koyukuk River flows through Game Management Units
(GMU) 21D and 24. Approximately one half of the KCUA lies within
the northern portion of GMU 21D, while the other half lies within
the southern portion of GMU 24. Together, GMU 21D and GMU 24
cover roughly 38,000 square miles. The KCUA occupies roughly
4,791 square miles - about thirteen percent of the combined areas
of GMU 21D and GMU 24. Despite the controlled use area
designation, the abundance and density of moose in the KCUA
continued to attract increasing numbers of non-local hunters
throughout the 1980s and 1990s.
The Koyukuk River Basin Moose Co-Management Team (the
team) represents a coalition of native villages located along the
Koyukuk River. Villages in the Koyukuk River drainage are
heavily dependent on subsistence, and the team contends that the
moose population in the area has declined significantly due to
increased hunting pressure.
In response to the declining moose population, the
Alaska Department of Fish and Game organized the Koyukuk River
Moose Hunter's Working Group to advise the department on Koyukuk
River moose management. The working group was a citizen-based
advisory body composed primarily of representatives from various
state fish and game advisory committees. The department and the
working group produced a draft management plan for Koyukuk River
moose in February 2000. The plan recommended reducing the total
moose harvest in the lower Koyukuk River drainage - within the
area of the KCUA - by reducing the anterless moose harvest and
changing the general hunt in the KCUA to a drawing hunt with
separate resident and non-resident drawing pools.
The Board of Game met in Fairbanks March 3-13, 2000 and
considered the draft management plan. The board heard public
testimony on the proposals, including comments from team members,
and written and oral comments from the team's counsel.
The board ultimately adopted, with some amendments,
many of the changes proposed in the draft plan. Significant
among these was Proposal No. 30, which recommended changing the
portion of 5 Alaska Administrative Code (AAC) 85.045 pertaining
to the general moose hunt in the KCUA. The general hunt in the
KCUA had been a general registration hunt, but Proposal No. 30
recommended replacing it with a permit drawing hunt.1 The draft
proposed a drawing hunt in the KCUA with an allowance for "up to"
320 resident permits and "up to" 80 non-resident permits in the
combined portions of GMU 21D and GMU 24 that are within the KCUA.
This proposal allowing for the issuance of "up to" 400 permits in
the KCUA was adopted as part of 5 AAC 85.0452 and is the focus of
the team's appeal in this court. The subsistence registration
hunt remained unlimited within the KCUA, as did the general hunt
in GMU 21D outside the KCUA, and within portions of GMU 24
outside the KCUA. "Unlimited" here refers to a lack of numerical
restrictions on the number of permits issued.3 And although the
non-KCUA remainder of GMU 21D was regulated uniformly under 5 AAC
85.045, the non-KCUA remainder of GMU 24 was further subdivided
so that different provisions applied to different geographical
regions within that game management unit.4
The subsections of 5 AAC 85.045 set permit limits for a
drawing hunt in the KCUA, but the board does not manage moose in
the KCUA as a distinct animal population. Rather, the board made
findings under Alaska's subsistence laws5 and managed moose
populations for the larger game management units.6
The team filed suit against the Board of Game,
Commissioner Frank Rue, and the state April 12, 2000.7 The
complaint challenged the validity of 5 AAC 85.045, claiming that
(1) the board made subsistence determinations using inconsistent
populations; (2) the board failed to limit the moose harvest
outside the KCUA; (3) the regulation allowing "up to" 400 general
hunt permits in the KCUA violated the subsistence statute and
sustained yield requirements of Alaska law; and (4) the board
failed to consider predator harvest rates in determining
intensive game management goals. The team sought declaratory and
injunctive relief. The parties filed cross-motions for summary
judgment, and the superior court granted summary judgment in
favor of the defendants.
The team appeals the grant of summary judgment, arguing
that 5 AAC 85.045 violates the principles of sustained yield
management and that the board failed to make findings required
under Alaska's subsistence statutes. The team does not appeal
the board's actual findings.8 Rather, it argues that 5 AAC
85.045 exceeds the Board of Game's estimated sustained yield
harvest rate.
III. DISCUSSION
A. Standard of Review
We review a grant of summary judgment de
novo.9 We substitute our judgment for that of the
board when interpreting the Alaska Constitution and
issues of law.10 We interpret the constitution and
legal issues "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."11
We review the board's application of law to a
particular set of facts for reasonableness.12 Under
this standard, we "merely determine whether the
agency's determination is supported by the facts and is
reasonably based in law."13 We will not substitute our
judgment for that of the board or alter its policy
choice when the board's decision is based on its
expertise.14
Regulations adopted under Alaska's
administrative procedure statute are presumptively
valid,15 and challengers have the burden of
demonstrating that the regulation is invalid.16 We will
not overturn a resource management regulation simply
because one group of resource users believes that the
regulation should have a different substance.17
B. The Board Was Within Its Discretion in Not
Managing Moose in the KCUA as a Distinct Game
Population.
The team argues that 5 AAC 85.045, the board's
regulation allowing "up to" 400 permits in the KCUA, violates
sustained yield principles for moose in the KCUA. The team
relies on the board's population estimates and argues that
actually issuing 400 permits would exceed sustained yield
projections for moose in the KCUA.
The state argued below that it was within the board's
discretion to delegate management authority to the department,
and that the team's alleged violation was only theoretical
because the regulation's language was permissive. The board
viewed the 400-permit limit as a ceiling, and expected the
department to issue fewer than 400 permits.
On appeal the team relies heavily on language in the
superior court's memorandum decision and order which states:
When facts are construed in favor of the
Team, the authorization of 400 permits
represents a harvest rate by hunters of 9.24
percent. Although nothing in the record
suggests that a 9.24 percent harvest rate
could be sustained at this time in the KCUA,
the Board's discussion of intensive
management suggests that a harvest rate as
high as 10 percent could be biologically
feasible using predator control and habitat
manipulation.
Despite its observation regarding sustained yield in
the KCUA, the superior court granted summary judgment to the
state. The superior court upheld the board's regulation as a
permissive delegation of authority to the department to issue
fewer than 400 permits, and noted evidence in the record
supporting the proposition that a harvest rate of 9.24 percent
could be sustained in the KCUA with intensive management
techniques. The parties' arguments on appeal generally track the
superior court's decision, and the briefs provide extensive
discussion of permissible board delegations of authority to the
department, and departmental discretion in implementing board
regulations.
Much of this discussion overlooks this fundamental
question: does the KCUA designate a relevant game population
under Alaska law? The team alleges that the regulation violates
sustained yield principles with respect to moose in the KCUA. It
is not clear, however, that the controlled use area corresponds
to a relevant game population for management purposes. If the
KCUA does not designate a relevant game population, the board is
not required to make findings or satisfy sustained yield
requirements under Alaska's resource management laws for moose
within the KCUA.18
This is a threshold matter because the team's challenge
to 5 AAC 85.045 is predicated on the notion that the state must
satisfy the sustained yield principle for moose in the KCUA. The
team does not dispute the board's findings or sustained yield
projections for the two GMUs that encompass the KCUA. The state
correctly indicates that the team seems to accept seven percent
and five percent as estimates for the maximum sustained harvest
for GMU 21D and GMU 24, respectively. The team does not argue
that 5 AAC 85.045 exceeds these sustained yield harvest estimates
for GMU 21D or GMU 24. Consequently, if GMU 21D and GMU 24
designate the relevant moose populations for purposes of managing
all the moose in those GMUs, including moose that happen to be in
the KCUA, the team's arguments regarding moose in the KCUA must
fail.
The superior court's thorough memorandum decision
accurately described the mechanics of game management under
Alaska's subsistence statute, AS 16.05.258. The board must first
identify game populations customarily and traditionally taken or
used for subsistence - the so-called "C&T" designation.19 It must
then determine whether a portion of a game population given a
positive C&T designation under AS 16.05.258(a) can be harvested
consistent with sustained yield.20 If so, the board must then
determine the amount of the harvestable portion reasonably
necessary for subsistence.21 The board then calculates the
amount, if any, available for non-subsistence uses.22 The amount
of moose available for non-subsistence use is the number
remaining after subtracting the number of moose necessary for
subsistence use from the portion harvestable within the
constraints of a sustained yield. If the harvestable portion is
insufficient to provide for all uses, the subsistence statute
prescribes the allocation of the harvestable portion between
different user groups, giving preference to subsistence uses.23
For these determinations, the statute defines "game population"
as "a group of game animals of a single species or subgroup
manageable as a unit."24
The board does not manage moose in the KCUA as a
distinct game population. Rather, the board uses the larger GMUs
and their subunits as the relevant game populations for managing
Koyukuk moose.25 The subsections of 5 AAC 85.045 use the KCUA's
geographic boundaries to set permit limits, but setting permit
limits within the KCUA does not equate to game management under
Alaska law.
In arguing that the board failed to make required
findings under AS 16.05.255 and .258, the team contends that the
board was required to manage moose in the KCUA as an identifiable
game population because its regulation set harvest levels for the
KCUA. The team's argument is largely conclusory. The team
implies that the board's population determinations were
irrational and arbitrary, but it fails to substantiate this
proposition. The team presumes that because the board's
regulations address moose within the KCUA, the board managed
moose in the KCUA as a single population. These two propositions
do not necessarily follow. Use of the KCUA boundary in 5AAC
85.045 does not mean that the board managed moose in the KCUA as
an identifiable or biologically significant game population.
The team recognizes that the board has substantial
discretion to identify game populations, and acknowledges that it
can do so "in any rational manner" reasonably related to the
purposes of the subsistence statute. But it fails to explain why
the board's decision not to manage moose in the KCUA as a
distinct game population was arbitrary or somehow unreasonable in
light of the statute. The team gives no legal or statutory
support for the proposition that a controlled use area
necessarily designates a manageable game population. The team
similarly fails to substantiate the proposition that the board
must manage moose in the KCUA as an identifiable game population
because 5 AAC 85.045 sets permit limits within the geographical
boundaries of the controlled use area. The team cites the
constitutional provision requiring that Alaska's resources be
"maintained on the sustained yield principle,"26 but it cites no
authority suggesting that this principle must be applied to
animals within a controlled use area, or simply to any cognizable
game population. Indeed, the latter proposition would be
untenable.
The team has the burden of demonstrating the invalidity
of 5 AAC 85.045,27 but in this case it failed to do so. The state
maintains that it is within the board's discretion to determine
game management populations, and that in this case it was
reasonable not to manage moose in the KCUA as a distinct game
population. We agree. While the burden of demonstrating
invalidity lies with the team, the state offers substantial
justification for the board's choice of management populations.
As an initial matter, creating a controlled use area
does not necessarily amount to designating a relevant animal
population for management purposes. In this case, the history of
the KCUA is instructive: it was created to reduce non-local
hunting by prohibiting the use of aircraft - not because it
reflected a biologically significant animal population. We have
held that the creation and management of a controlled use area
involves "matters of policy committed to the judgment of the
Board,"28 and we agree with the board's position that
"[r]egulations directed at reducing competition or conflict among
users of a game resource in specific areas do not amount to a
concession that the animals within that smaller area are
`manageable as a unit.' "
In defense of its regulations, the board maintains that
the KCUA boundaries are highly artificial, and that the KCUA
moose population is too small and too dense to serve as a
relevant game population for management purposes. The board
correctly notes that any harvest would violate sustained yield
principles if the population sample were sufficiently narrow.
Given inappropriately small geographic constraints, every
resource harvest could approach 100 percent.
The board also defends its choice of management
populations by noting that the GMUs are the traditional
populations used for game management. Moreover, the board points
to distinguishing characteristics of the KCUA, other than its
size, that justify targeted permit limitations in that area. The
board notes the significant moose density in the KCUA, hunter
crowding problems not present in adjoining areas, and the
significant harvest pressure relative to the larger GMU 21D and
GMU 24.29 The board also refers us to this instructive testimony
from an area biologist:
When we went through the plan and the
discussion we had talked about the harvest
rates, at the very back . . . of the Koyukuk
moose hunters working group plan. We gave
these 8%, 7.5%, and 7% harvest rates. And
those applied only to the high density
portion of the controlled use area where it
happens to overlay with that high density
area of moose population. The generalized
harvest rates of 5-7% for 21D still was the
out of the bounds. So, even if we did have a
higher harvest rate within the controlled use
area, we were still - have the sideboards of
not exceeding the unit-wide harvest rates.
And so, we wouldn't be exceeding that
population level for the more meaningful
population biologically.
This suggests both that the KCUA does not designate the
meaningful biological population, and that sustained yield
principles could be satisfied for the "more meaningful" moose
population despite a high rate of harvest in the KCUA.
Faced with a similar question in the fisheries context,
we observed in Native Village of Elim v. State that
"manageability" was the key element in classifying management
populations.30 We held that a population determination made by
the Board of Fisheries should receive "considerable deference"
for two reasons: first, because the identification of populations
requires knowledge and experience and thus falls within the
board's expertise, and second, because the subsistence law
defines populations broadly in order to give the board the
flexibility it needs to accommodate the biological and ecological
concerns involved in resource management.31 In the same case we
also noted that courts are "singularly ill-equipped to make
natural resource management decisions."32 The board's discretion
is not unlimited in making population determinations, but we will
uphold the board's determination if it is reasonably related to
the purposes of the subsistence law.33 The board is not permitted
to manipulate game populations "simply to achieve a predetermined
outcome."34
Under this deferential standard, the Board of Game was
properly within its discretion in not managing moose in the KCUA
as a distinct game population. We are satisfied with the board's
rationale and will not second-guess its assessment of the
manageability of moose in the KCUA. Such a determination falls
within the purview of agency expertise and discretion. The team
failed to show that the board's population determinations were
not reasonably related to the purposes of the subsistence law, or
that they were somehow manipulated to achieve a predetermined
outcome. Given the planning effort undertaken by the state, this
case strikes us as similar to Native Village of Elim35 and
Interior Alaska Airboat Association v. State,36 in which we held
that we will not overturn a resource management regulation simply
because one group of resource users believes that a different
outcome is more desirable.
We decline to hold that all areas within a GMU must be
regulated uniformly, or that the board's decision not to regulate
GMU 21D and GMU 24 uniformly denotes the existence of multiple
game populations for sustained yield analysis. And because we
reject the team's position that the KCUA designates a relevant
moose population for management purposes, we are unpersuaded by
the team's argument that 5 AAC 85.045 violates the sustained
yield requirements of the Alaska Constitution and Alaska law with
respect to moose in the KCUA.
C. The Team's Other Arguments Regarding Sustained
Yield Fail Because They Are Predicated on the
Assumption that the KCUA Designates a Relevant Game
Population.
In an argument similar to its sustained yield
contention, the team also asserts that the board failed to make
the findings for moose in the KCUA required by AS 16.05.255 (the
intensive management statute) and AS 16.05.258 (the subsistence
statute). As discussed above, the board was within its
considerable discretion in not using the KCUA to define a
relevant moose population for management purposes. It therefore
was not required to make findings under the statutes for moose in
the KCUA.
The team also argues that the board should have
implemented intensive management techniques in the KCUA. In its
memorandum decision the superior court noted that the harvest
rate in the KCUA could be maintained through intensive
management. The board did not implement intensive management in
the KCUA, however, and the team argues that the board's
regulation is arbitrary and unreasonable because the board could
only avoid violating sustained yield principles for moose in the
KCUA by applying intensive management techniques. The team even
suggests in its reply brief that its claims "would have been
mooted" if the board had adopted intensive management
initiatives.
Again, though, the team's argument regarding intensive
management is inherently predicated on the twin propositions that
the KCUA designates a relevant moose population, and that
sustained yield must be satisfied with respect to moose in the
KCUA. We review the board's population determinations under the
intensive management statute with the same deferential standard
we apply to population determinations under the subsistence
statute. Furthermore, the violation of sustained yield
principles alleged here by the team relates to moose in the KCUA
- not to the GMU populations that the board permissibly managed.
The team's argument calling for intensive management techniques
in the KCUA fails because it is aimed at preventing a violation
of sustained yield requirements for a population that does not
require sustained yield analysis.
Similarly, the team advances several arguments
questioning whether the board can save 5 AAC 85.045 by delegating
authority to the department to issue fewer than 400 permits in
the KCUA. We need not reach these arguments because the team's
delegation arguments assume that, absent the delegation, the
regulation would violate sustained yield requirements for moose
in the KCUA. The team's delegation arguments fail because the
board permissibly determined that the KCUA does not identify a
relevant management population. Because sustained yield analysis
for moose in the KCUA is unnecessary, the regulation need not be
saved by authority delegated to the department to issue fewer
than 400 permits.
IV. CONCLUSION
For these reasons we AFFIRM the superior court's grant
of summary judgment in favor of the state.
_______________________________
1 See Former 5 AAC 85.045 (1999) (general registration hunt in
the KCUA).
2 See 5 AAC 85.045 (2003) (am. 7/1/00) (changing the general
registration hunt in the KCUA to a drawing hunt).
3 See 5 AAC 85.045(19), (22) (2003) (am. 7/1/00).
4 Id.
5 See, for example, the findings required under AS 16.05.255
(e)-(g), and AS 16.05.258.
6 See, e.g., 5 AAC 92.108 (2003); 5 AAC 99.025 (2003).
7 Appellants first brought suit in Koyukuk River Tribal Task
Force on Moose Management v. Rue (Superior Court Case No. 4FA-99-
561 Ci.), alleging various violations of Alaska subsistence
statutes and constitutional provisions. That case was dismissed
by the superior court for failure to exhaust administrative
remedies, and we recently remanded the case following an appeal
on the issue of attorney's fees. Koyukuk River Tribal Task Force
on Moose Mgmt. v. Rue, 63 P.3d 1019, 1022 (Alaska 2003).
8 The team's opening brief explains that the team "does not
dispute the [department's] methodology, estimates of population,
the amounts reasonably necessary for subsistence, nor the general
hunt success ratios." The team acknowledges that these
determinations require agency expertise, and "agrees, for the
purposes of this litigation, that the Court[] should defer to the
agency expertise with regard to the determination of these
factors and the methodology used by the agency to determine
sustained yield."
9 Native Vill. of Elim v. State, 990 P.2d 1, 5 (Alaska 1999).
10 Id.
11 Id.
12 Id.
13 Id. (quoting Hammer v. City of Fairbanks, 953 P.2d 500, 504
(Alaska 1998)).
14 Id.
15 See AS 44.62.100.
16 Native Vill. of Elim, 990 P.2d at 14. See also Interior
Alaska Airboat Ass'n v. State, 18 P.3d 686, 689 (Alaska 2001)
(noting that regulations will be upheld as long as they are
"consistent with and reasonably necessary to implement the
statutes authorizing their adoption" (quoting State, Bd. of
Marine Pilots v. Renwick, 936 P.2d 526, 531 (Alaska 1997))).
17 Native Vill. of Elim, 990 P.2d at 14.
18 See AS 16.05.258; infra notes 19-24 and accompanying text.
19 AS 16.05.258(a).
20 AS 16.05.258(b).
21 Id.
22 Id.
23 AS 16.05.258(b)(1)-(4).
24 AS 16.05.940(19).
25 See 5 AAC 99.025 (2003) (C&T determinations under AS
16.05.258); 5 AAC 92.108 (2003) (intensive management findings
under AS 16.05.255(e)-(g)).
26 Alaska Const. art. VIII, 4.
27 Native Vill. of Elim v. State, 990 P.2d 1, 14 (Alaska 1999)
("[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.");
see also Interior Alaska Airboat Ass'n v. State, 18 P.3d 686, 689
(Alaska 2001).
28 Interior Alaska Airboat Ass'n, 18 P.3d at 693.
29 The record supports the state's contention that the KCUA
yields sixty-five percent of the total moose harvest from GMU 21D
and GMU 24.
30 990 P.2d at 10-11.
31 Id.
32 Id. at 8.
33 Id. at 11.
34 Id.
35 990 P.2d at 14.
36 18 P.3d 686, 693 (Alaska 2001).
