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State v. Kenaitze Indian Tribe (01/16/2004) sp-5770
State v. Kenaitze Indian Tribe (01/16/2004) sp-5770
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
STATE OF ALASKA and FRANK )
RUE, as Commissioner of Fish and ) Supreme Court No. S-10358
Game, )
Appellants, ) Superior Court No. 3AN-91-
4569 CI
)
v. ) O P I N I O N
)
KENAITZE INDIAN TRIBE, ) [No. 5770 - January 16, 2004]
NINILCHIK TRADITIONAL )
COUNCIL, KNIK TRIBAL )
COUNCIL, and NATIVE VILLAGE )
OF EKLUTNA, )
)
Appellees. )
________________________________)
)
KENAITZE INDIAN TRIBE, ) Supreme Court No. S-10388
)
Cross-Appellant, )
)
v. )
)
STATE OF ALASKA and FRANK )
RUE, as Commissioner of Fish and )
Game, )
)
Cross-Appellees. )
________________________________)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Mark Rindner, Judge.
Appearances: Stephen M. White, Assistant
Attorney General, and Bruce M. Botelho,
Attorney General, Juneau, for
Appellants/Cross-Appellees. Goriune
Dududgian and James J. Davis, Jr., Alaska
Legal Services Corporation, Anchorage, for
Appellee/Cross-Appellant Kenaitze Indian
Tribe, and for Appellees Knik Tribal Council
and Native Village of Eklutna. David S. Case
and Cindy Thomas, Landye Bennett Blumstein
LLP, Anchorage, for Appellee Ninilchik
Traditional Council.
Before: Matthews, Eastaugh, Bryner, and
Carpeneti, Justices. [Fabe, Chief Justice,
not participating.]
EASTAUGH, Justice.
I. INTRODUCTION
After the Alaska Joint Boards of Fisheries and Game
promulgated a regulation classifying the communities of Eklutna,
Knik, and Ninilchik as nonsubsistence areas, the communities
appealed to the superior court, which held that the regulation
was invalid because it did not satisfy AS 16.05.258(c). Because
we conclude that the joint boards, in promulgating the
regulation, did not act arbitrarily and capriciously, we reverse
the decision of the superior court, thus reinstating the disputed
regulation. We also conclude that the joint boards did not err
by relying on the information available to them. Additionally,
we reject the cross-appeal of the Kenaitze Indian Tribe, which
claims that the superior court erred in upholding the
classification of the remainder of the Kenai Peninsula as a
nonsubsistence area.
II. FACTS AND PROCEEDINGS
In 1992 the Alaska legislature amended the state
subsistence law1 to require the Joint Boards of Fisheries and
Game to identify nonsubsistence areas, where subsistence hunting
and fishing would not be permitted.2 The statute defined a
nonsubsistence area as an area or community where dependence upon
subsistence is not a principal characteristic of the economy,
culture, and way of life of the area or community.3 In
determining whether an area or community qualifies as a
nonsubsistence area, the joint boards are required by the statute
to consider thirteen socio-economic characteristics of the area
or community.4
Per the 1992 amendments, the joint boards met in
November 1992 to identify nonsubsistence areas. The joint boards
heard public testimony from affected tribe members, and
considered evidence submitted by the tribes and reports from the
Alaska Department of Fish and Game. The joint boards then
adopted regulation 5 Alaska Administrative Code (AAC) 99.015,
which established five nonsubsistence areas in the state: the
Ketchikan Nonsubsistence Area, the Juneau Nonsubsistence Area,
the Anchorage-MatSu-Kenai Nonsubsistence Area, the Fairbanks
Nonsubsistence Area, and the Valdez Nonsubsistence Area.5 At
issue in this case is the Anchorage-MatSu-Kenai Nonsubsistence
Area, which encompasses most of the Kenai Peninsula, all of the
Municipality of Anchorage, and a large part of the Matanuska-
Susitna Borough.6
The Kenaitze Indian Tribe filed suit in 1991 seeking a
judicial declaration that the state was not managing the salmon,
hooligan, and smelt stocks in Upper Cook Inlet in accordance with
the subsistence priority as required by law. The Kenaitze Indian
Tribe has approximately 800 members, most of whom reside on the
Kenai Peninsula, around the City of Kenai. Its members are
direct descendants of the Denaina-Athabascan Indians. The tribe
also sought an injunction barring the state from restricting the
tribes ability to engage in subsistence uses of those fish.
After the joint boards established the Anchorage-MatSu-Kenai
Nonsubsistence Area per the 1992 revised statute, the tribe
amended its complaint to include claims that the nonsubsistence
area violated its members constitutional rights under the Alaska
Constitutions equal access clauses (article VIII, sections 3, 15,
17) and equal protection clause (article I, section 1). The
tribe also claimed that the joint boards creation of the
Anchorage-MatSu-Kenai Nonsubsistence Area violated the 1992
subsistence statute because the joint boards exceeded their
delegated authority.
The Ninilchik Traditional Council, the Native Village
of Eklutna, and the Knik Tribal Council intervened with similar
claims against the state.7 The Ninilchik Traditional Council
represents a community whose members are direct descendants of
the Denaina-Athabascan Indians. Its members live along the coast
of Cook Inlet in the vicinity of Ninilchik on the Kenai
Peninsula. Eklutna Village members are direct descendants of the
Denaina-Athabascan Indians. Located within the Municipality of
Anchorage, the village consisted of thirty adults and
approximately seventeen children in 1992. The Knik Tribal
Council represents a community located in the Matanuska-Susitna
Borough; its members are direct descendants of the Denaina-
Athabascan Indians and live along the coast of Knik Arm, near
Knik and Wasilla.
The state and the plaintiffs filed cross-motions for
partial summary judgment on the constitutional issues presented.8
In October 1993 then-Superior Court Judge Dana A. Fabe granted
the plaintiffs motion and denied the states motion. The superior
court declared that the nonsubsistence area provision of the 1992
act was unconstitutional under article VIII, sections 3, 15, and
17 of the Alaska Constitution and therefore held the provision
void and severable from the remainder of the 1992 act. The
superior court dismissed the plaintiffs remaining claims as moot.
The state appealed the superior courts decision to this court.
In State v. Kenaitze Indian Tribe, we reversed the
superior courts decision and held that the provision that
requires the joint boards to identify nonsubsistence areas was
constitutional.9 We also held that AS 16.05.258(b)(4)(B)(ii),
which conditioned eligibility for Tier II subsistence status on a
whether a users domicile was in proximity to the target resource,
was unconstitutional under sections 3, 15, and 17 of article VIII
of the Alaska Constitution because it impermissibly barred Alaska
residents from participating in subsistence activities based on
where they lived.10 We remanded for further proceedings.11
The superior court stayed the case for several years.
In 2000, the Kenaitze Indian Tribe, the Ninilchik Traditional
Council, the Native Village of Eklutna, and the Knik Tribal
Council (collectively, the tribes) moved for summary judgment on
their statutory claims. The tribes argued that the joint boards
decision to include the communities of Knik, Eklutna, and
Ninilchik within the Anchorage-MatSu-Kenai Nonsubsistence Area
violated AS 16.05.258(c) because the joint boards did not
correctly apply the socio-economic criteria set out in the
statute. Agreeing with the plaintiffs, Superior Court Judge Mark
Rindner held that the procedure the joint boards followed in
including Knik, Eklutna, and Ninilchik in the Anchorage-MatSu-
Kenai Nonsubsistence Area was inconsistent with AS 16.05.258(c).
The court further held, however, that the joint boards inclusion
of the rest of the Kenai Peninsula in the nonsubsistence area was
valid because the parties did not litigate those areas.
The state appeals. The Kenaitze Indian Tribe cross-
appeals the superior courts ruling that the joint boards
inclusion of the rest of the Kenai Peninsula within the Anchorage-
MatSu-Kenai Nonsubsistence Area was valid.
III. DISCUSSION
A. Standard of Review
We review grants of summary judgment de novo.12 When a
regulation is adopted in accordance with the Administrative
Procedure Act,13 and the legislature intended to give the agency
discretion, we review the regulation by ascertaining whether the
regulation is consistent with its authorizing statutory
provisions and whether the regulation is reasonable and not
arbitrary.14
B. Whether 5 AAC 99.015 Is Consistent with Its Authorizing
Statutory Provision, AS 16.05.258(c)
We first determine whether the regulation is consistent
with its authorizing statute,15 AS 16.05.258(c). This inquiry
ensures that the agency has not exceeded the power delegated by
the legislature.16
The tribes argue that the procedure the joint boards
employed in adopting 5 AAC 99.015 was not consistent with the
statutory design of AS 16.05.258(c). The tribes acknowledge that
AS 16.05.258(c) allows the joint boards a certain degree of
discretion in establishing the boundaries of nonsubsistence
areas. But the tribes contend that the joint boards discretion
is not absolute. In support of their argument, the tribes rely
on our opinion in Native Village of Elim v. State.17 We there
noted that the Alaska Board of Fisheries discretion to identify
fish stocks used for subsistence based on the socio-economic
criteria listed in AS 16.05.258(c) was limited by two principles:
first, the boundaries that the Board ultimately adopts must be
reasonably related to the twelve criteria; second, the boundaries
must be consistent with the legislatures purpose to provide a
preference for subsistence uses.18
The tribes contend that the joint boards procedure
violated the guiding principles of Native Village of Elim and is
therefore inconsistent with the statute. They assert that the
joint boards procedure skewed the outcome effectively sweeping
the [t]ribes communities into a vast nonsubsistence area without
independently considering their distinct characteristics. The
tribes argument impliedly attacks two of the joint boards
procedural decisions: first, by drawing proposed nonsubsistence
boundaries before applying the statutory criteria; and second, by
combining the Anchorage-MatSu proposed nonsubsistence area with
the Kenai Peninsula proposed nonsubsistence area for the purposes
of applying the socio-economic criteria.
Relying on the principles enunciated in Native Village
of Elim, the superior court held that the joint boards overall
approach was inconsistent with the legislatures purpose of
providing a preference for subsistence uses. The court observed
that the joint boards placed the cart before the horse by drawing
large nonsubsistence boundaries before applying the socio-
economic criteria. The superior court noted that such an
approach fundamentally diminishes the relevance of the criteria
with respect to individual communities, which in turn potentially
dilutes otherwise recognizable subsistence characteristics. The
superior court further determined that AS 16.05.258(c) required
the joint boards to apply the . . . socio-economic criteria to
individual areas or communities, evaluate the results and [then]
derive a . . . nonsubsistence classification before dealing with
boundaries. (Original emphasis.)
On appeal, the state argues that the superior court
erred in ruling that the joint boards procedure for adopting its
regulation was inconsistent with AS 16.05.258(c). The state
contends that AS 16.05.258(c) does not specify a procedure for
the joint boards to follow and grants the joint boards a certain
amount of discretion to decide when in the process of
establishing nonsubsistence areas the joint boards may start
drawing boundaries.
The states arguments are persuasive. Indeed, AS
16.05.258(c) does not specify a particular procedure for the
joint boards to follow. The statute only requires the joint
boards to consider the relative importance of subsistence in the
context of the totality of the following socio-economic
characteristics to identify nonsubsistence areas:
(1) the social and economic structure;
(2) the stability of the economy;
(3) the extent and the kinds of employment
for wages, including full-time, part-
time, temporary, and seasonal
employment;
(4) the amount and distribution of cash
income among those domiciled in the area
or community;
(5) the cost and availability of goods and
services to those domiciled in the area
or community;
(6) the variety of fish and game species
used by those domiciled in the area or
community;
(7) the seasonal cycle of economic activity;
(8) the percentage of those domiciled in the
area or community participating in
hunting and fishing activities or using
wild fish and game;
(9) the harvest levels of fish and game by
those domiciled in the area or
community;
(10) the cultural, social, and economic
values associated with the taking and
use of fish and game;
(11) the geographic locations where those
domiciled in the area or community hunt
and fish;
(12) the extent of sharing and exchange of
fish and game by those domiciled in the
area or community;
(13) additional similar factors the boards
establish by regulation to be relevant
to their determinations under this
subsection.
Alaska Statute 16.05.258(c) does not expressly preclude the joint
boards from drawing starting boundaries before applying the
criteria, nor does it specify the order in which the joint boards
must apply the criteria.19
The joint boards decision to start with nonsubsistence
boundaries before applying the criteria was not inconsistent with
AS 16.05.258(c). In Native Village of Elim, we observed that AS
16.05.258(c) allows the joint boards discretion to draw
boundaries that are appropriate for a given set of circumstances.20
We approvingly cited an informal opinion of the attorney general
discussing the nonsubsistence criteria of AS 16.05.258(c).21 It
stated that the joint boards may choose almost any boundary as a
starting point for their deliberations.22
Although they encompass relatively large areas, the
boundaries chosen by the joint boards as a starting point here
were not improper. The joint boards derived the starting
boundaries for the nonsubsistence areas from the boundaries of
what they had previously classified as non-rural areas, per the
1986 subsistence law limiting subsistence use to residents
domiciled in rural areas of the state.23 The attorney generals
informal opinion noted that the statutory criteria set out in AS
16.05.258(c) are substantially similar to the regulatory criteria
adopted by the joint boards to determine whether a particular
area of Alaska was rural under the 1986 subsistence law.24 It
also observed that in many circumstances, the new nonsubsistence
areas may not be different from the areas that were identified as
[non]rural under the 1986 law.25 Given the similarity of the
rural criteria and the subsistence criteria, the joint boards did
not exceed their discretion in using the non-rural boundaries as
starting points for their nonsubsistence determinations.
Ultimately, the tribes appear to argue that beginning,
rather than ending, with a nonsubsistence boundary prejudiced the
outcome of the joint boards deliberations. But there is no
constitutional preference for a subsistence or nonsubsistence
starting point for any given community. Nothing in the statute
suggests that the board must first apply the statutory criteria
to individual communities, like Knik, Eklutna, or Ninilchik,
before drawing initial boundaries nor do the principles
enunciated in Native Village of Elim. Starting with a
nonsubsistence area did not permit the joint boards to avoid the
responsibility of adopting boundaries reasonably related to the
twelve criteria.26 And starting with a nonsubsistence area does
not necessarily either dictate an endpoint or defeat the
legislative preference for subsistence uses.27 The procedure does
not drive the substance in this case. And although the
boundaries must be consistent with the legislative preference for
subsistence uses, that does not mean that the preference itself
determines the boundaries; if it did, it would undercut the
significance of the statutory factors.
The tribes also challenge the joint boards procedural
decision to include the tribes communities within such a large
geographical area when applying the statutory criteria. The
tribes maintain that the huge geographic area selected for
consideration could not help but dictate the outcome. . . . [A]ny
community in Alaska, even an entirely subsistence-dependent one,
would have no chance, if joined with Anchorage for analysis, of
showing its true character as a place where dependence upon
subsistence is a principal characteristic of the economy,
culture, and way of life.
Using the non-rural boundaries as a guide, the joint
boards initially included the communities of Knik and Eklutna
within the Anchorage-MatSu Proposed Nonsubsistence Area, and
included the Ninilchik community and the Kenaitze Indian Tribe
within the Kenai Peninsula Proposed Nonsubsistence Area. During
deliberations, the joint boards decided to first apply criterion
eleven (AS 16.05.258(c)(11)) to each of the proposed
nonsubsistence areas. Alaska Statute 16.05.258(c)(11) required
the joint boards to consider the geographic locations where those
domiciled in the area or community hunt or fish.28 The joint
boards then decided to apply the other criteria to the geographic
locations identified by criterion eleven. When applying
criterion eleven to the Anchorage-MatSu Proposed Nonsubsistence
Area, the joint boards decided to combine that area with the
Kenai Peninsula Proposed Nonsubsistence Area because of the
subsistence use patterns of Anchorage residents.29
The tribes argue that the joint boards applied
criterion eleven in a manner unintended by AS 16.05.258(c). They
argue that the statute does not direct [the joint boards] to
establish the boundaries of nonsubsistence areas based upon
criterion 11. The state argues that the joint boards
deliberations and written findings show that although the
[b]oards started with [criterion eleven], by the end, they had
considered all twelve. The states argument is persuasive. As we
stated above, the statute does not dictate the order in which the
joint boards must consider the statutory criteria when they
determine a nonsubsistence boundary, only that they consider the
relative importance of subsistence in the context of the totality
of the socio-economic criteria.30
The joint boards decision to use large nonsubsistence
starting areas or even to combine the two proposed areas did not
exceed their discretion. Although the boundaries encompassed
relatively large areas, we recognized in Native Village of Elim
that an area or community as the words are used in AS
16.05.258(c), may encompass several subdistricts grouped
together.31 It is within the joint boards discretion to combine
discrete subareas for the purposes of applying the statutory
criteria.
Ultimately, the size of the geographical area that the
joint boards used in applying the statutory criteria appears to
be relevant only to the extent that some of the information the
joint boards relied on was also organized by these larger areas.
For example, the reports of the Alaska Department of Fish and
Game (ADF&G) relied on by the joint boards covered the Anchorage-
MatSu Proposed Nonsubsistence Area and the Kenai Peninsula
Proposed Nonsubsistence Area, respectively, and contained only a
small amount of information about the tribes communities. But
the joint boards also considered public testimony from tribe
members and other evidence submitted by the tribes about their
particular communities. We will, however, discuss in Part III.C
whether the joint boards considered evidence available to them
when they made their subsistence determinations.
C. Whether 5 AAC 99.015 Is Reasonable and Not Arbitrary
The next inquiry is whether the regulation was
reasonable and not arbitrary. In determining whether an
administrative regulation is reasonable or arbitrary, we look at
the agencys process for adopting the regulation.32 Review
consists primarily of ensuring that the agency has taken a hard
look at the salient problems and has genuinely engaged in
reasoned decision making33 or determining whether the agency has
failed to consider an important factor.34
The tribes contend that the joint boards regulation was
arbitrary because the joint boards applied few, if any, of the
statutory criteria to the Knik, Eklutna, and Ninilchik
communities. They claim that the joint boards did not have
enough information about the communities to engage in reasoned
decision making.
The state argues that the statute does not require the
joint boards to have information about every criterion for every
community before making a nonsubsistence determination. Although
several board members acknowledged that they had little
information about Knik, Eklutna, and Ninilchik, and the joint
boards final decisional document stated as much, the state
contends that a lack of information on any particular criterion,
or on several criteria, does not prevent [the joint boards] from
making a determination of subsistence-dependency. We agree.
Although the joint boards considered ADF&G reports
which included little information on the three communities, the
tribes had ample opportunity to present evidence to the joint
boards. The joint boards met from November 1 through November 7,
1992. On November 2 the joint boards conducted public hearings
at which some tribe members testified. Each tribe also submitted
written comments opposing the proposed nonsubsistence areas, and
submitted, along with other evidence, the results of surveys
completed by tribe members.
We do not interpret AS 16.05.258(c) to have imposed an
implicit affirmative duty on the joint boards in this case to
gather additional information on these communities before making
a nonsubsistence determination. The explicit language of AS
16.05.258(c) certainly does not require the joint boards to
direct ADF&G to submit more information.35 Nor have the tribes
directed our attention to any provision in the statute that would
have required the joint boards to do so.
Assuming for the sake of discussion that an
administrative agency could not validly promulgate a regulation
if the information needed for a reasonable consideration of the
statutory factors were altogether absent,36 that is certainly not
the situation here. The information proffered to the joint
boards was not so altogether lacking that the joint boards had a
duty to direct ADF&G to submit more information. An
administrative agency may make a reasonable decision even though
the information available to it is limited; complete certainty is
not required.37
The relevant inquiry is therefore whether the joint
boards engaged in reasoned decision making, using the information
available to them. The tribes contend that the joint boards did
not give a hard look at all of the evidence presented to them
about the three communities. We disagree.
1. Knik and Eklutna
We first consider whether the joint boards gave a hard
look at the Knik and Eklutna communities, given the information
available to the joint boards.38 Based on our review of the
record, it appears to us that the tribes offered evidence that
arguably fit within these statutory criteria: subsection
.258(c)(1) (social and economic structure); subsection .258(c)(3)
(extent and kinds of employment for wages); subsection .258(c)(4)
(amount and distribution of cash income); subsection .258(c)(6)
(variety of fish and game used); subsection .258(c)(8)
(percentage of those domiciled in the area or community
participating in hunting and fishing activities or using wild
fish and game); subsection .258(c)(9) (harvest levels of fish and
game); subsection .258(c)(10) (cultural, social, and economic
values associated with the taking and use of fish and game);
subsection .258(c)(11) (geographic locations where those
domiciled in the area or community fish or hunt); and subsection
.258(c)(12) (extent of sharing and exchange of fish and game).
The joint boards also heard testimony about Knik and
Eklutna from Dr. James A. Fall, a regional program manager for
the Alaska Department of Fish and Game, Division of Subsistence.
Although Dr. Fall did not mention all of the statutory criteria,
he presented some evidence that fit within many of the same
criteria as the tribes evidence. The Anchorage-MatSu
Nonsubsistence Area proposal prepared by ADF&G briefly mentioned
that the residents of Knik and Eklutna still consider the use of
wild resources to be of cultural, economic, and nutritional
importance.
The joint boards members did not explicitly mention
each criterion during their deliberations on Knik and Eklutna,
nor were they required to do so, but their discussion reflects
that they gave a hard look at the available evidence. The chair
of the joint boards acknowledged that he had read the tribes
evidence twice, characterizing some of it as difficult to
understand. The chair specifically discussed the tribes evidence
on income patterns, the percentage of food supply coming from
wild fish and game per household, and the extent to which the
tribes were dependent on subsistence foods. After considering
the tribes evidence and Dr. Falls testimony, the chair concluded
that he did not see any trends that made him think Knik and
Eklutna were distinguishable from nonsubsistence areas.
The tribes argue that to the limited extent the joint
boards considered their communities, the joint boards focused
exclusively on the communities economies. But although the board
members comments on Knik and Eklutna primarily focused on the
communities economic characteristics, many of the board members
also expressed general concerns about the effect on the culture
and the traditions of the tribes implying that the board members
were cognizant of the tribes culture and lifestyles and sensitive
to them.
Based on our review of the joint boards deliberations,
we conclude that the joint boards gave a hard look at the
evidence regarding the Knik and Eklutna communities. The
regulations inclusion of Knik and Eklutna within the Anchorage-
MatSu-Kenai Nonsubsistence Area was therefore reasonable and not
arbitrary.
2. Ninilchik
We also conclude that the joint boards gave a hard look
at the evidence relevant to the Ninilchik community. The
Ninilchik Indian Council presented evidence of the Ninilchik
residents unemployment rates, relevant under subsection
.258(c)(3) (extent and the kinds of employment for wages). The
tribe also presented evidence germane to the following statutory
criteria: subsection .258(c)(6) (variety of fish and game used);
subsection .258(c)(8) (percentage of those domiciled in the area
or community participating in hunting and fishing activities or
using wild fish and game); subsection .258(c)(9) (harvest levels
of fish and game); subsection .258(c)(10) (cultural, social, and
economic values associated with the taking and use of fish and
game); and subsection .258(c)(12) (extent of sharing and exchange
of fish and game). A Ninilchik resident also testified before
the joint boards.
Dr. Fall presented evidence to the joint boards on the
social and economic structure and the areas harvest levels.
ADF&Gs Kenai Peninsula Nonsubsistence Area proposal reported the
yields for commercial fishers in Ninilchik, Ninilchiks per capita
wild food harvest for 1982, and the extent of sharing between
households.
During their deliberations on Ninilchik, board members
shared personal observations of the community. Board Member
Franzmann noted that Ninilchik was a very commercial city. Other
board members noted Ninilchiks economic growth, and the areas
relative affluence. The chair also discussed the incomes of the
Ninilchik residents. Board Member Wallen commented that
Ninilchiks harvest levels fell somewhere in between most of the
communities on the Kenai. Board Member Lyons also commented on
the tribes cultural traditions, noting the testimony of a elder
Ninilchik resident who was distressed by the increased amount of
commercial fisheries.
The tribe challenges the joint boards reliance on the
personal unsubstantiated opinions of board members. This
argument is without merit because board members may rely on their
own expertise to assist them in making subsistence
determinations.39
The tribe has not pointed to any particular evidence
before the joint boards that the boards did not consider. Having
reviewed the joint boards deliberations, we conclude that the
joint boards gave a hard look at the evidence regarding the
Ninilchik community. We therefore hold that the regulations
inclusion of Ninilchik in the Anchorage-MatSu-Kenai
Nonsubsistence Area was reasonable and not arbitrary.
D. Whether It Was Reasonable and Not Arbitrary To Include
the Kenai Peninsula Within the Anchorage-MatSu-Kenai
Nonsubsistence Area
The superior court judgment awarding summary judgment
to the tribes declared 5 AAC 99.015(a)(3) invalid to the extent
the regulation included Knik, Eklutna, and Ninilchik in the
Anchorage-MatSu-Kenai Nonsubsistence Area. But the judgment held
that the regulations inclusion of the Kenai Peninsula in the
nonsubsistence area, except for the community of Ninilchik and
other areas already excepted by the regulation, was not invalid.
It stated that these other areas were not litigated by the
parties.
The Kenaitze Indian Tribe, the original plaintiff in
this suit, has filed a cross-appeal from this ruling; it argues
that at every stage in the ten-year litigation, it has contested
the validity of the [j]oint [b]oards inclusion of the tribes
hunting and fishing grounds within the Anchorage-MatSu-Kenai
nonsubsistence area. It seems to be correct, as the
tribe argues and the state concedes, that the tribe did litigate
this issue in the superior court. Before the joint boards
convened in November 1992, the Kenaitze Indian Tribe, along with
the Ninilchik Traditional Council, submitted to the joint boards
written comments that asked the joint boards to exclude the Kenai
Peninsula from any nonsubsistence area under AS 16.05.258(c). In
December 1992, after the joint boards established the Anchorage-
MatSu-Kenai Nonsubsistence Area, the Kenaitze Indian Tribe filed
an amended complaint seeking a declaratory judgment invalidating
the joint boards inclusion of the tribes hunting and fishing
areas within the nonsubsistence area. In February 2002 the
Ninilchik Traditional Council, the Native Village of Eklutna, and
the Knik Tribal Council intervened. Many of the arguments in the
tribes motion for summary judgment applied to the members of all
of the tribes, but some parts of the motion specifically
addressed the Kenaitze Indian Tribes claim that its hunting and
fishing grounds on the Kenai Peninsula should not have been
included in the nonsubsistence area. Because the issue was
litigated in the superior court, one possible remedy for this
error would be remand to the superior court.
But given the long delays in this litigation (the
Kenaitze Indian Tribe first filed suit in 1991) and the fact that
the joint boards regulation was promulgated in 1992, we are
reluctant to remand to the superior court to carry out the same
review that we have already conducted. We therefore think it is
better in this case for us to consider the merits of whether the
regulation is invalid, rather than remand to the superior court,
with the potential for further appeals.
As part of our consideration of the validity of the
regulation with respect to Ninilchik, Knik, and Eklutna in the
states appeal discussed above, we have reviewed the evidence
before the joint boards and the comments of the board members
about evidence pertaining to the Kenaitze Indian Tribe and the
Kenai Peninsula.
The ADF&G report covering the Kenai Peninsula included
information on the City of Kenai, where many Kenaitze members
reside. The information pertained to some of the statutory
criteria, including harvest levels and the percentage of City of
Kenai residents engaging in hunting and fishing activities. The
report specifically mentions the Kenaitze Indian Tribe in
discussing AS 16.05.258(c)(10) (cultural, social, and economic
values associated with the taking and use of fish and game), and
in noting that the tribes use of fish and game may reflect values
associated with [Denaina] cultural traditions.
The tribe submitted to the joint boards evidence that
included a statement opposing the classification of Game
Management Unit 15 (encompassing the majority of the Kenai
Peninsula) as a nonsubsistence area. The statement included
information that bore on several of the statutory criteria. The
statement also summarized the results of surveys taken by tribe
members. The surveys themselves were also submitted to the joint
boards. Some of the tribes members also testified in the public
hearings the joint boards conducted.
Dr. Fall testified that he did not have much more to
add to the public testimony. He also noted that the Division of
Subsistence had never collected any information specifically on
members of the Kenaitze tribe because the division did not
organize its research in that manner. The only information Dr.
Fall had on the tribe was contained in studies conducted for the
City of Kenai. The joint boards also received information on the
tribes educational fishery.
It is evident from the joint boards deliberations that
the boards members considered the public testimony and other
evidence the tribe submitted. After reviewing the public
testimony, Board Member Elias characterized the testimony as
inconsistent, particularly the information the tribe provided on
its members incomes. Board members also discussed the testimony
of a tribe member emphasizing the importance of maintaining the
tribes educational fishery.
But ultimately the joint boards had difficulty
attempting to identify a discrete, geographical area in which the
Kenaitze Indian Tribe was located for the purposes of applying
the statutory criteria. Board Member Elias commented that
members of the tribe have moved all over, and theyve dispersed in
an area where you cannot define a single, local area to where the
tribe does hold a ground or an area. Board Member Carlisle also
noted that the difficulty . . . in trying to isolate the Kenaitze
group is that they have spread out considerably on the Kenai
Peninsula. They dont have a core village, if you will, such as
Ninilchik.
Based on our review of the record, we conclude that the
joint boards gave a hard look at the evidence presented and that
the regulation is not invalid for failing to designate the Kenai
Peninsula as a subsistence area. A remand is not needed because
the issue does not require the resolution of any disputed issues
of material fact as evidenced by the plaintiffs willingness to
submit the issue to the superior court on summary judgment.
IV. CONCLUSION
We consequently REVERSE the summary judgment that
declared invalid the inclusion of Knik, Eklutna, and Ninilchik in
the Anchorage-MatSu-Kenai Nonsubsistence Area, and AFFIRM the
summary judgment that declared valid the inclusion of the Kenai
Peninsula in the nonsubsistence area.
_______________________________
1 AS 16.05.258.
2 Ch. 1, 2, SSSLA (Second Special Session Laws Alaska)
1992.
3 Ch. 1, 2, SSSLA 1992; AS 16.05.258(c).
4 AS 16.05.258(c)(1)-(13). We set out the statutory
criteria in Part III.B.
5 5 AAC 99.015.
6 5 AAC 99.015(a)(3).
7 State v. Kenaitze Indian Tribe, 894 P.2d 632, 635
(Alaska 1995).
8 Id.
9 Id. at 642 (upholding AS 16.05.258(c), the statute
requiring boards to identify nonsubsistence areas by regulation).
10 Id. at 638-39.
11 Id. at 642.
12 Interior Alaska Airboat Assn v. State, Bd. of Game, 18
P.3d 686, 689 (Alaska 2001).
13 AS 44.62.
14 Interior Alaska Airboat Assn, 18 P.3d at 689-90.
15 Id.
16 Stepovak-Shumagin Set Net Assn v. State, Bd. of
Fisheries, 886 P.2d 632, 636-37 (Alaska 1994) (quoting Kelly v.
Zamarello, 486 P.2d 906, 911 (Alaska 1971)).
17 Native Vill. of Elim v. State, 990 P.2d 1 (Alaska
1999).
18 Id. at 9-10.
19 AS 16.05.258(c).
20 990 P.2d at 11.
21 Id. at 10.
22 1992 Informal Op. Atty Gen. 77. The weight we accord
to opinions of the attorney general is largely within our
discretion. See Grimes v. Kinney Shoe Corp., 938 P.2d 997, 1000
n.7 (Alaska 1997); Carney v. State, Bd. of Fisheries, 785 P.2d
544, 548 (Alaska 1990) (stating that opinions of attorney general
are not controlling but are entitled to some deference).
23 Ch. 52, 9, 11, SLA 1986, codified at AS 16.05.940(22),
(33) (1986). This provision of the subsistence law was struck
down in McDowell v. State, 785 P.2d 1, 9 (Alaska 1989) (holding
unconstitutional the residency criterion used in the 1986 act
which conclusively excludes all urban residents from subsistence
hunting and fishing regardless of their individual
characteristics).
24 1992 Informal Op. Atty Gen. 77.
25 Id.
26 Native Vill. of Elim, 990 P.2d at 9-10.
27 Subsistence hunting and fishing have had statutory
priority over nonsubsistence activities since 1978. Ch. 151, 4,
5, SLA 1978.
28 AS 16.05.258(c)(11).
29 Board Member Bosworth justified combining the two areas
because of the use patterns of Anchorage residents:
[W]e will be describing initially, under this
approach, the use pattern by residents of the
Anchorage area, and we will find out that
they go both north into the proposal for the
MatSu/ Anchorage area, and also south down to
Kenai, and it might just make sense that we
get that entire pattern out on the table
right from the start, and then work with
that.
30 AS 16.05.258(c).
31 Native Vill. of Elim, 990 P.2d at 10.
32 Interior Alaska Airboat Assn v. State, Bd. of Game, 18
P.3d 686, 693 (Alaska 2001).
33 Id. at 690.
34 Id. at 693.
35 AS 16.05.258(c) provides in part:
The boards may not permit subsistence hunting
or fishing in a nonsubsistence area. The
boards, acting jointly, shall identify by
regulation the boundaries of nonsubsistence
areas. A nonsubsistence area is an area or
community where dependence upon subsistence
is not a principal characteristic of the
economy, culture, and way of life of the area
or community. In determining whether
dependence upon subsistence is a principal
characteristic of the economy, culture, and
way of life of an area or community under
this subsection, the boards shall jointly
consider the relative importance of
subsistence in the context of the totality of
the following socio-economic characteristics
of the area or community . . . .
36 See Hammond v. N. Slope Borough, 645 P.2d 750, 759
(Alaska 1982) (upholding decision of commissioner of natural
resources that oil lease was in states best interests and
explaining that if the Commissioner had no information whatsoever
on the effect of oil leasing on the subsistence lifestyles, it is
questionable whether he could reasonably decide that the proposed
sale was in the states best interests. However, complete
certainty is not required.).
37 Stepovak-Shumagin Set Net Assn v. State, Bd. of
Fisheries, 886 P.2d 632, 641-42 (Alaska 1994) (holding
regulation not arbitrary even though joint boards had limited
information when promulgating it); Alaska Survival v. State, Dept
of Natural Res., 723 P.2d 1281, 1287 (Alaska 1986) (upholding
departments decision to proceed with lottery to dispose of land
after data on which decision was based had been revised);
Hammond, 645 P.2d at 759-60 (holding that commissioner of natural
resources finding that lease sale was in states best interests
was reasonable despite lack of information concerning adverse
effects of sale).
38 The joint boards considered Knik and Eklutna together
because both communities had similar use patterns.
39 State v. Hebert, 743 P.2d 392, 397 (Alaska App. 1987),
affd, 803 P.2d 863 (Alaska 1990); see also 2 Am. Jur. 2d
Administrative Law 209 (2003).
