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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. 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).