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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. State v. Dupier (08/12/2005) sp-5932

State v. Dupier (08/12/2005) sp-5932

     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, )
) Supreme Court No. S- 11140
Petitioner, ) Court of Appeals Nos. A-8270/8271/8272
)
v. ) Superior Court Nos. 3HO-S02-00061 CR,
) 3HO-S01-00460 CR, 3HO-S01-00145 CR
JOHN DUPIER, RODMAN E. )
MILLER, and PHILLIP J. ) O P I N I O N
TWOHY III, )
) [No. 5932 - August 12, 2005]
Respondents. )
)


          Petition  for  Hearing  from  the  Court   of
          Appeals  of  the State of Alaska,  on  appeal
          from  the  District Court  of  the  State  of
          Alaska,  Third Judicial District,  Homer,  M.
          Francis Neville, Judge.

          Appearances:    Jon   K.   Goltz,   Assistant
          Attorney  General, Anchorage,  and  Gregg  D.
          Renkes,   Attorney   General,   Juneau,   for
          Petitioner.    Michael  Hough,   Homer,   for
          Respondents  Dupier  and  Twohy.   Melvin  M.
          Stephens II, Kodiak, for Respondent Miller.

          Before:   Bryner,  Chief  Justice,  Matthews,
          Eastaugh, Fabe, and Carpeneti, Justices.

          FABE, Justice.

I.   INTRODUCTION
          The   Commercial  Fisheries  Entry  Commission   (CFEC)
charged  three  federally permitted fishers  with  landing  their
halibut  and  sablefish catches in Alaska without state  permits.
The fishers did not attempt to fish in state waters.  The fishers
argue that the CFEC exceeded its authority when it required  them
to  possess interim-use permits to land their catches in  Alaska.
They  also argue that the State is preempted by federal law  from
requiring federal halibut and sablefish permit holders to  obtain
state permits to land their catches in Alaska.  In addition,  the
fishers  assert  that  the  States  permit  requirements  violate
certain provisions of the federal constitution.  We hold that the
State  did not exceed its authority when it required the  fishers
to  possess  interim-use permits.  We additionally conclude  that
federal law does not preempt the States permit requirements,  and
that   the  permit  requirements  do  not  violate  the   federal
constitution.
II.  FACTS AND PROCEEDINGS
     A.   Facts and Trial Court Decision
          The  facts of this case are undisputed.  Appellees John
Dupier,  Rodman  E.  Miller,  and  Philip  J.  Twohy  each   held
Individual  Fishing Quotas (IFQs) to fish in federal waters.   In
2001,  after  fishing  legally  in federal  waters,  the  fishers
separately  attempted  to land their catches  in  Alaska  without
first obtaining state permits from the Commercial Fisheries Entry
Commission  (CFEC).   None of the fishers attempted  to  fish  in
state  waters.   The  State charged the fishers  with  possessing
commercially  taken fish in state waters without having  a  valid
interim-use permit, in violation of 20 AAC 05.110.1
          The Alaska Legislature has authorized the CFEC to issue
three  types  of  permits.  The first type,  entry  permits,  are
issued  for  fisheries that have been subject  to  limited  entry
because  they are at risk.2  A second type of permit, the landing
permit, is designed for fishers landing their catches in Alaska.3
The  Alaska  Legislature gave the commissioner of Fish  and  Game
discretion  to authorize the CFEC to issue landing permits,4  but
the  commissioner had not done so prior to 2003;  therefore,  the
CFEC  had  never  issued a landing permit  when  the  respondents
received citations.  The CFEC is also authorized to issue a third
type  of permit, the interim-use permit.5  The purpose and  scope
of interim-use permits are the central issue in this litigation.
          The  court  of  appeals summarized the charges  against
Dupier,  Miller,  and  Twohy and the trial court  proceedings  as
follows:
          Initially,  all three appellees were  charged
          with  failing  to have an interim-use  permit
          under  20 AAC 05.110(c), and the State seized
          the  proceeds of their catches.   Later,  the
          State  conceded  that it  could  not  forfeit
          fishing   proceeds  under  20  AAC  05.110(c)
          because  a first violation of that regulation
          was only punishable by a fine of no more than
          $5,000.1    The   State  then  charged   each
          appellee with an additional count of  failing
          to  have a landing permit under AS 16.05.675.
          Courts are required to forfeit the fish taken
          or  retained  as a result of a  violation  of
          that statute.2
          
               The  appellees  all  filed  motions   to
          dismiss.    Judge   Neville   granted   those
          motions, ruling that the appellees could  not
          be  convicted under AS 16.05.675 because  the
          CFEC had never issued landing permits and the
          appellees could not get them.  Judge  Neville
          also  found that the appellees could  not  be
          convicted under 20 AAC 05.110(c) because that
          regulation  was invalid.  Judge Neville  gave
          several reasons for this conclusion: (1)  the
          legislature had intended fishers landing fish
          caught  in  federal  waters  to  get  landing
          permits, not interim-use permits; (2) 20  AAC
          05.110(c)   was   inconsistent    with    the
          legislative    purpose   behind   interim-use
          permits,  which  were intended  to  authorize
          fishers  to operate specific gear in specific
          fisheries  managed by the state; and  (3)  by
          requiring fishers harvesting fish in  federal
          waters to hold permits that had been designed
          for fishers operating in state fisheries, the
          CFEC  had  created unintended conflicts  with
          federal law.[6]
          
          _________________________

               1    AS 16.43.970(a).

               2    AS 16.05.723.

     B.   Court of Appeals Decision
          The   court  of  appeals  affirmed  the  trial   courts
dismissal  of the charges.7  The court of appeals concluded  that
the  CFEC  is  only  authorized to issue interim-use  permits  to
persons  fishing in areas that are potentially subject to limited
entry  by  the CFEC.  Therefore, the court of appeals  determined
that  the  CFEC  had no authority to require fishers  in  federal
waters  to  hold  interim-use permits to land  their  catches  in
Alaska  and  concluded  that  20 AAC  05.110(c)  was  an  invalid
regulation.
          The court of appeals also affirmed the dismissal of the
charges brought by the State under AS 16.05.675,8 concluding that
AS  16.05.675  does  not require fishers to have  interim-use  or
entry permits, but instead directs fishers without interim-use or
entry permits to obtain landing permits.
          Finally, the court of appeals applied the same analysis
to the charge against Twohy for landing sablefish as that applied
to the charges against all three respondents for landing halibut.
The  court  upheld the district courts dismissal of  all  of  the
charges against all of the respondents.
     C.   Amendments to AS 16.43.210(a) and 20 AAC 05.110
          The  scope  of  the CFECs authority to require  permits
within  state waters turns on the language in the Alaska statutes
          governing interim-use permits, particularly AS 16.43.210(a), but
also  AS  16.43.140(a),  AS 16.10.267(a)(1),  and  AS  16.05.675.
Following  the  court  of  appeals decision  in  this  case,  the
legislature amended AS 16.43.210(a) so that it is now clear  that
the  CFEC may issue interim-use permits for all Alaska fisheries,
regardless  of whether the fishery is subject to limited  entry.9
In  this decision, we examine whether the State was authorized to
issue  interim-use  permits for all Alaska fisheries  before  the
effective date of the amendment.
          In  addition, the CFEC amended 20 AAC 05.110 after  the
court of appeals declared it invalid.  As it existed in 2001,  20
AAC  05.110  required  anyone possessing fish  for  a  commercial
purpose  to  have either an interim-use or entry  permit  card.10
Now  the  regulation requires either an entry permit, an interim-
use  permit, or a landing permit.11  We examine whether the prior
version  of  the  regulation was valid when the State  sought  to
apply it against the respondents.
III. DISCUSSION
     A.   Standard of Review
          We  review a grant or denial of a motion to dismiss  de
novo.12   We  also review questions of law de novo, adopting  the
rule of law that is most persuasive in light of precedent, reason
and  policy.13  Statutory interpretation is a question of law  to
which  we  apply our independent judgment.14  When  reviewing  an
agency decision that raises questions of statutory interpretation
involving   legislative   intent,   we   review   the   questions
independently, applying the substitution-of-judgment standard.15
     B.   Overview of Fisheries Management
          Alaskas  fisheries are subject to a complex  regulatory
system   consisting  of  state  and  federal  laws  as  well   as
international agreements.16  The laws and regulations  applicable
to this case are summarized below.
          1.   Federal regulation of fisheries
          In  1976  Congress enacted the Magnuson-Stevens Fishery
Conservation and Management Act (Magnuson-Stevens Act) to  manage
the  fisheries  found off the coast of the United States.17   The
purpose  of  the Magnuson-Stevens Act was to conserve and  manage
fisheries within a 200-mile radius called the Exclusive  Economic
Zone,  or  EEZ.18   The  Magnuson-Stevens  Act  created  regional
fishery  management councils, including the North Pacific Fishery
Management  Council,  which governs the Gulf  of  Alaska.19   The
management  councils  submit  fishery  management  plans  to  the
Secretary of Commerce, who then promulgates regulations based  on
those plans.20
          Alaskas  halibut  fisheries  are  also  governed  by  a
convention  between  the United States and  Canada  (the  Halibut
Convention).21   The  Halibut Convention is  implemented  in  the
United  States  by  the  Northern Pacific  Halibut  Act  of  1982
(Halibut  Act).22  The Halibut Act grants authority to the  North
Pacific  Fishery Management Council (established by the Magnuson-
Stevens Act) to develop regulations for the management of Alaskas
halibut  fisheries.23  These regulations set forth the individual
fishing  quota  program in which Dupier, Miller, and  Twohy  were
participating when they received citations from the CFEC.24
          2.   State regulation of fisheries
          The  Alaska Legislature enacted the Limited Entry Act25
in  1973  after finding that use levels in Alaskas fisheries  had
become  high  enough  to  impair  the  economic  welfare  of  the
fisheries  of  the state, the overall efficiency of the  harvest,
and  the  sustained  yield management of the fishery  resource.26
The  Act  created  the CFEC and charged it with regulating  entry
into  the  states  commercial fisheries.27  The CFECs  permitting
scheme  is the primary mechanism for enforcing the Limited  Entry
Act.   We  examine  the  scope of the CFECs authority  under  the
Limited Entry Act below.
     C.   The  CFEC Did Not Exceed Its Authority by Requiring the
          Respondents To Possess Interim-Use Permits Under 20 AAC
          05.110.
          
          Dupier,  Miller, and Twohy argue that the CFEC exceeded
its  authority  when  it  required them  to  possess  interim-use
permits  under 20 AAC 05.110.  In our analysis of this claim,  we
first  examine  whether state law authorized the  CFEC  to  issue
interim-use  permits for state fisheries not subject  to  limited
entry.  We then turn to the question whether state law authorized
the CFEC to require interim-use permits for fishers who sought to
fish  solely in federal waters but who desired to land their fish
in Alaska.
          1.   Alaska  law authorized the CFEC to issue  interim-
               use  permits  for state fisheries not  subject  to
               limited entry.
               
          If  the  CFEC  was not authorized to issue  interim-use
permits for fisheries in which limited entry was neither in place
nor  pending,  it  was  not authorized to require  them  for  the
respondents.  For this reason, we begin our analysis by examining
whether the CFEC was authorized to issue interim-use permits  for
state fisheries not subject to limited entry.
          As  it  existed  in 2001, the Alaska statute  governing
interim-use permits, AS 16.43.210, stated:
               Interim-use permit; qualifications.  (a)
          Pending  the  establishment  of  the  maximum
          number  of  entry permits under AS  16.43.240
          and  the  issuance of entry permits under  AS
          16.43.270, the [CFEC] shall issue interim-use
          permits  under  regulations  adopted  by  the
          commission for each fishery, not subject to a
          moratorium   under  AS  16.43.225,   to   all
          applicants  who can establish  their  present
          ability  to  participate  actively   in   the
          fishery    for   which   they   are    making
          application.[28]
          
Whether  the  CFEC was authorized to require interim-use  permits
turns in part on the meaning of the word pending.  The meaning of
that  word is ambiguous.  The respondents argue that this statute
only  authorized the CFEC to issue interim-use permits under  two
circumstances:   first, as the initial phase in a  limited  entry
scheme, and second, after the maximum number of entry permits has
been  established but before all the authorized permits have been
issued for a given fishery.  In particular, the respondents argue
that  the  word  pending indicates that the legislature  intended
interim-use  permits to be issued for fisheries in which  limited
entry  programs were either in place or imminent.  The State,  on
the  other hand, argues that the word pending indicates that  the
legislature  intended the permits to be issued for all  fisheries
where  the  establishment of the maximum number of entry  permits
and  the issuance of entry permits was not accomplished  in other
words,  for  every fishery not limited to entry.29  We  find  the
States interpretation to be more persuasive.
          The  starting point for our analysis of the CFEC  entry
permit  system  is AS 16.43.140, the statute requiring  either  a
valid  entry  permit  or  an interim-use  permit  for  commercial
fishers  in  Alaskas fisheries.30  This statute is one  of  three
enabling  statutes cited in 20 AAC 05.110, the  regulation  under
which  the CFEC initially charged the respondents for not  having
interim-use  permits.31   The  coverage  of  AS  16.43.140(a)  is
comprehensive.   It applies to the commercial taking  of  fishery
resources   without  limitation.32   It  thus  applies   to   all
commercial  fisheries regardless of whether they are or  will  be
fisheries in which entry is limited.
          Until  1977, AS 16.43.140 operated in conjunction  with
state statutes requiring fishers to obtain gear licenses in order
to  operate  fishing gear in Alaskas commercial fisheries.   From
the  time the entry permit program was established in 1973  until
gear licenses were abolished, commercial fishers were required to
obtain  either entry permits or interim-use permits, as  well  as
gear  licenses.33   The legislature abolished  gear  licenses  in
1977.34   After  gear  licenses  were  abolished,  fishers   were
required to obtain only entry permits or interim-use permits.
          All  commercial  fishers fishing for halibut  in  state
waters  were  required to have gear licenses before  the  statute
requiring  gear licenses was repealed, and the CFEC has  required
all  commercial fishers to have interim-use permits  since  1974.
The  legislative history indicates that the legislature abolished
gear  licenses to eliminate duplication between the entry  permit
program  and the gear licensing program.  For instance,  Governor
Hammonds transmittal letter to the legislature stated:  The  bill
would   eliminate  the  currently  required  gear   license   and
commercial fishing license for holders of entry permits and  thus
simplify   the  paper-work  of  license  applications   for   all
concerned, especially the fishermen.35  Similarly, a letter  from
the   CFEC   chairperson  to  the  Senate   Resources   Committee
chairperson stated:  The new system we are proposing will  result
in  eliminating  State agency duplication  of  time  and  effort,
create a much needed data base, and most important will eliminate
much  of  the  bureaucratic paperwork for the fishermen.36   This
history  indicates that the legislature intended that interim-use
permits  serve  the  same broad purposes that gear  licenses  had
previously served.
          The  proposition that the legislature intended interim-
use  permits  to serve the purposes of gear licenses  is  further
supported by the fee structure for interim-use permits.  When the
          legislature abolished gear licenses, the fees that had previously
been  collected  from gear licenses were revised and  applied  to
entry  permits  and interim-use permits.37  Taken together,  this
legislative history indicates that when the legislature abolished
gear  licenses, it anticipated that the CFEC would issue interim-
use permits to commercial halibut fishers even in state fisheries
where  limited  entry was not pending, since  gear  licenses  had
previously been required in non-limited fisheries.  We  therefore
conclude  that  the  CFEC  was authorized  to  issue  interim-use
permits  for  persons fishing in all state  fisheries.   We  next
examine whether the CFEC was authorized to require fishers in the
EEZ to possess interim-use permits to land their fish in Alaska.
          2.   Alaska  law authorized the CFEC to require fishers
               in  the EEZ to possess interim-use permits to land
               their fish in Alaska.
               
          Having determined that the CFEC was authorized to issue
interim-use  permits for fisheries not subject to limited  entry,
we  turn  to  the  question whether the CFEC  was  authorized  to
require interim-use permits for fishers who operated gear  solely
in  the  EEZ  but  wished to land their catches  in  Alaska.   We
conclude  that  the  CFEC was authorized to  require  interim-use
permits for federally permitted fishers landing their catches  in
Alaska.
               a.   Interim-use permits serve purposes other than
                    authorizing gear operation.
                    
          As  discussed above, AS 16.43.140 prohibits any  person
from operating gear in the commercial taking of fishery resources
without  a  valid  entry permit or interim-use permit.38   Alaska
Statute 16.43.210 requires applicants for interim-use permits  to
establish  their present ability to participate actively  in  the
fishery for which they are making application.39  The respondents
argue  that  the  legislature designed  interim-use  permits  for
active  participants, or gear operators, in a given fishery,  not
for  fishers  seeking to land fish caught elsewhere.   The  State
argues  that  interim-use permits serve purposes in  addition  to
authorizing  the  operation of gear, including authorization  for
possession and landing.  Our examination of various provisions in
the  Limited Entry Act reveals that interim-use permits do  serve
purposes in addition to authorizing gear operation.
          For  instance,  AS  16.10.267(a)  requires  any  fisher
selling  fish  to  possess  a landing permit,  entry  permit,  or
interim-use permit.40  Thus, fishers who wish to sell  fish  must
possess a CFEC permit even if they do not intend to operate  gear
in  state  fisheries.   An interim-use permit  will  satisfy  the
statute, regardless of whether the permit holder plans to operate
gear.   Moreover, when AS 16.10.267(a) was adopted  in  1982,  it
codified,  as to sales, and ratified an existing CFEC  regulation
that  prohibited fishers from possessing fish within state waters
for  a commercial purpose without an interim-use permit.41  Under
the   regulation,  commercial  purpose  included  the  sale   and
transportation of fish.42  The regulation was specifically  aimed
at  fish  taken beyond the waters of the state.  The CFEC finding
          accompanying the regulation explained that the regulation was
necessary because otherwise a fisherman taking fish and shellfish
in state waters need only claim that they were taken elsewhere in
order to avoid state law.43  Thus, AS 16.10.267(a), together with
the   regulation  that  it  partially  codified   and   ratified,
illustrates  that interim-use permits serve purposes in  addition
to authorizing the operation of gear.44
               b.   The  legislature intended landing permits  to
                    have  a narrow purpose not applicable to  the
                    respondents in this case.
                    
           Dupier, Miller, and Twohy argue that the State  should
have  required  them  to  possess landing  permits,  rather  than
interim-use  permits.45   But landing  permits  were  created  in
198446  for  a narrow class of fishers that does not include  the
respondents.  This narrow scope of landing permits is  delineated
in  a  letter  from  the Attorney General to  Governor  Sheffield
regarding  the  amendment to the Limited Entry Act  that  created
landing  permits.47   The letter indicates that  the  legislature
created  landing  permits  after two  fishers  who  were  legally
fishing  for  salmon in federal waters attempted  to  land  their
catches  in Alaska.  When they were informed that they would  not
be  permitted to land in Alaska because they did not possess  the
appropriate  state  permits, they threatened to  sue  the  state.
Rather  than litigate the issue, the Attorney General recommended
that  the  legislature create a permit to accommodate fishers  in
this situation.48
          The  difference  between the fishers who  prompted  the
creation of landing permits and the respondents in this  case  is
that  the  1984 fishers were fishing for salmon.  Alaskas  salmon
fisheries had been subject to limited entry by the state, so  the
two  salmon fishers could not obtain interim-use permits or entry
permits, which were distributed on a limited basis and would have
permitted  them to fish for salmon in state waters.  In contrast,
the  CFEC has not limited entry to Alaskas halibut fisheries,  so
the  respondents  in  this case could have  procured  interim-use
permits if they had applied for them.49
          This   history  indicates  that  landing  permits  were
intended  for  the narrow situation embodied by the  1984  salmon
fishers:   fishers holding permits to fish in federal waters  who
are  precluded from obtaining interim-use or entry  permits  from
the  state  due  to  existing  limited  entry  programs.50   This
conclusion is supported by the Attorney Generals 1984  letter  to
the  Governor,  which states:  Aside from the two  fishermen  who
hold federal permits, but not state permits, for the salmon power
troll  fishery,  the only possible application of  these  landing
permits  would  be  in  the crab fishery if  that  is  eventually
limited by the state.51  We conclude that the creation of landing
permits did not alter the scope of interim-use permits, and  that
the  existence of landing permits did not preclude the State from
requiring the respondents to possess interim-use permits.
          Finally, we note that the landing permit statute  gives
the  CFEC  commissioner discretion to authorize the  issuance  of
landing  permits  for a given fishery.52  If the legislature  had
          intended to require landing permits for all landings, the
legislature  would  not  have made the issuance  of  the  permits
discretionary.   In  contrast, the statute governing  interim-use
permits  makes their issuance mandatory.53  We also note that  AS
16.05.675 explicitly requires that those who have not been issued
landing permits must either hold limited entry permits or interim-
use  permits in order to deliver or land fish in the state.  This
also  supports  our conclusion that the State was  authorized  to
require interim-use permits for fishers fishing in the EEZ.54
     D.   The  CFEC Did Not Exceed Its Authority when It  Charged
          the Respondents with Violating AS 16.05.675.
          
          The  respondents  claim  that  the  CFEC  exceeded  its
authority  when  it  charged  them with  violating  AS  16.05.675
because  the statute requires fishers to possess landing permits,
not  interim-use permits or entry permits.  We disagree.   Alaska
Statute  16.05.675  requires either an entry permit,  interim-use
permit, or a landing permit.55  Although landing permits are  the
focus of the statute, the State did not exceed its authority when
it  charged  the  respondents with a  violation  of  the  statute
because  they  did  not  possess any type  of  CFEC  permit.   As
discussed  above,  the State was not required  to  issue  landing
permits  to  the  respondents because the  legislature  made  the
issuance  of  landing permits discretionary, and the  respondents
did  not  fall  into  the category of fishers  for  whom  landing
permits were intended.  Yet they were still required to possess a
permit under AS 16.05.675.
     E.   Federal Law Does Not Preempt State Permit Requirements.
          Dupier,  Miller, and Twohy next argue that the CFEC  is
preempted  by  federal  law  from requiring  permits  of  fishers
participating  in the federal IFQ program.  Under  the  Supremacy
Clause  of  the federal constitution,56 state laws that interfere
with  federal laws are invalid.57  Federal laws can preempt state
laws  in  the  following  three ways: (1) if  Congress  expressly
declares   that   state  law  is  preempted;  (2)   if   Congress
demonstrates an intent to occupy a field exclusively; and (3)  if
there  is  an  actual conflict between federal and  state  law.58
Preemption  may be either express or implied.59  When considering
preemption,  courts start with the assumption that  the  historic
police  powers  of  the states were not to be superseded  by  the
Federal  Act  unless that was the clear and manifest  purpose  of
Congress.60
          The  respondents acknowledge that there is  no  express
declaration  of  preemption in any of the federal laws  governing
fisheries  off  Alaskas coast.  They argue instead that  Congress
intended  to  occupy the field of halibut fishery management  and
that  the  CFECs  interpretation of Alaskas statutes  creates  an
actual conflict between federal and state law.
          1.   Congress  did  not intend to occupy the  field  of
               halibut fishery management with respect to permits
               required for landing fish in Alaska when it passed
               the Halibut Act.
               
          Dupier,  Miller, and Twohy first claim that the Halibut
          Act preempts state regulation of halibut fisheries because it
demonstrates  an  intent on the part of Congress  to  occupy  the
field  in this area.  The respondents rely on an informal opinion
letter  written by the Attorney General to a member of the Alaska
Legislature  in  1995.61  In this opinion, the  Attorney  General
concluded  that  the  Halibut Act preempted state  management  of
halibut within both federal and state waters.62
          The  Attorney Generals opinion rests on the  fact  that
the Halibut Treaty, which the Halibut Act implements, applies  to
both  federal and state waters.  Therefore, the Attorney  General
concluded, Congress intended to occupy the field when it  adopted
the  Halibut Treaty.  The Attorney General also observed that the
Halibut  Act  does  not  contain  any  provision  providing   for
regulation of halibut by the states.
          The  State  does  not  contest  the  Attorney  Generals
conclusion  that it is preempted from enacting halibut management
measures  that  conflict  with  measures  in  the  Halibut   Act.
Instead,  the  State argues that federal regulations  make  clear
that  state permitting measures are not preempted for the purpose
of  regulating  and  tracking fish  landings.   The  Halibut  Act
permits  the  Secretary of Commerce and the United  States  Coast
Guard to enter into agreements with state agencies to enforce the
Halibut  Act,  giving the states some role in the  management  of
halibut.63   To  that  end,  the  International  Pacific  Halibut
Commission  has  promulgated regulations  requiring  landings  of
halibut  to be recorded on state fish tickets64 and stating  that
halibut  licenses are in addition to any licenses required  under
the  laws  of  the states.65  Similarly, regulations  promulgated
under  the IFQ program state that the initial allocation of quota
shares  for  halibut and sablefish in the EEZ is predicated  upon
compliance  with state and Federal regulations in effect  at  the
time  of  the  landing.66  Compliance with state  regulations  is
demonstrated through state fish tickets.67
          Although  we have not specifically examined  preemption
under the Halibut Act in previous cases, we have examined whether
state  regulation of fisheries is generally preempted  under  the
Magnuson-Stevens Act.  In F/V Baranof, we concluded that Congress
did  not intend to fully occupy the field of fisheries management
when  it  passed the Magnuson-Stevens Act.68  We noted  that  the
Magnuson-Stevens Act permits states to regulate  fishing  vessels
outside  state boundaries, so long as the vessels are  registered
under  state laws.69  Therefore, we concluded that the  Magnuson-
Stevens Act does not preempt state regulation for every aspect of
fisheries   management.   F/V  Baranof   concerned   the   states
regulation of king crab, a species for which no separate  federal
regulations existed.  Although management of the halibut  fishery
is  governed  primarily  by  the  Halibut  Act,  F/V  Baranof  is
instructive in this case because it illustrates that we will  not
infer an intent to occupy the field where Congress has left  some
room for state involvement.70  In F/V Baranof, we also considered
that  the  states fisheries management programs shared  the  same
goal  as  the  Magnuson-Stevens Act  conservation of fisheries.71
Similarly, the Halibut Act leaves some room for state involvement
in  enforcement  of  the  act, and the states  permitting  scheme
          shares the same goal of the Halibut Act  conservation of
fisheries.   For these reasons, we conclude that the Halibut  Act
does not reflect an intent on the part of Congress to occupy  the
field  of  halibut  fishery management with  respect  to  permits
required for landing fish in Alaska.
          2.   The  CFECs  permit requirements do not  create  an
               actual conflict with federal law.
               
          Dupier,  Miller, and Twohy argue that the CFECs  permit
requirement  creates a direct conflict with federal  law.   State
law  is preempted if the state law conflicts with the federal law
to  the extent that (a) it is impossible to comply simultaneously
with both or (b) the state regulation obstructs the execution  of
the purpose of the federal regulation.72
          The respondents argue that a conflict exists because  a
corporation, firm, or association may participate in the  federal
IFQ  program, whereas the interim-use permits issued by the  CFEC
are  only  available to individuals.  Therefore, they argue  that
some fishers who are legally fishing in federal waters might  not
qualify  for  an  interim-use permit.  This is not  the  case  in
practice.  According to the State, a corporation participating in
the  federal IFQ program must assign its annual IFQ to a  natural
person  who  harvests the fish.  The assignee is the  person  who
must obtain a CFEC permit.73  Therefore, it is possible to comply
simultaneously  with both the federal permitting scheme  and  the
state   permitting  scheme.   Moreover,  the  purpose   of   both
permitting  schemes  is  to  conserve  fishery  resources.74   We
conclude  that  the  States requirement that federally  permitted
fishers  possess interim-use permits to land their halibut  catch
in Alaska is not preempted by federal law.
          3.   The Magnuson-Stevens Act does not preempt the CFEC
               from  requiring  permits of federal  sablefish  or
               halibut fishers.
               
          The  respondents  also  argue  that  the  CFECs  permit
requirements  are preempted by the Magnuson-Stevens  Act.75   The
Magnuson-Stevens Act provides in relevant part: the United States
claims,  and  will exercise in the manner provided  for  in  this
chapter,   sovereign  rights  and  exclusive  fishery  management
authority  over  all  fish,  and all  Continental  Shelf  fishery
resources,  within  the exclusive economic zone.76   Some  courts
have  indicated  that this provision preempts state  attempts  to
regulate  landings of fish caught in the EEZ.77  But these  cases
involve  outright bans on landings or landing limits that prevent
fishers  from  landing  fish in amounts permitted  under  federal
law.78  Other courts have upheld state regulations that apply  to
EEZ fishers.79
          The  CFECs  interim-use permit program does not  thwart
the  goals  of  the  Magnuson-Stevens Act; nor  does  it  prevent
federally permitted fishers from landing their fish.  Essentially
everyone who applies for an interim-use permit receives one,  the
permit  imposes no restrictions on catch or gear, and the fee  is
relatively low.  Moreover, as the court of appeals recognized  in
State  v.  Kalve,80 regulations promulgated under  the  Magnuson-
          Stevens Act contemplate that states will regulate halibut and
sablefish  landings  in  some fashion.  The  regulations  base  a
fishers  federal quota for halibut and sablefish on  the  fishers
prior legal landings of halibut and sablefish in IFQ fisheries.81
The regulations define legal landing as follows:  As used in this
section, a legal landing of halibut or sablefish means halibut or
sablefish harvested with fixed gear and landed in compliance with
state  and  Federal  regulations in effect at  the  time  of  the
landing.82   These  regulations  indicate  that  the  state   may
regulate  some  aspects  of  halibut and  sablefish  landings  in
Alaska.83
          We  also note that the Magnuson-Stevens Act carves  out
an  exception to  1811 for boats registered with the state.   The
exception is codified at 16 U.S.C.  1856(a)(3), which states:
          [A]  State  may  regulate  a  fishing  vessel
          outside  the boundaries of the State  in  the
          following  circumstances:   (A)  The  fishing
          vessel  is registered under the law  of  that
          State,  and  . . . (ii) the States  laws  and
          regulations  are consistent with the  fishery
          management   plan   and  applicable   Federal
          fishing regulations for the fishery in  which
          the vessel is operating.[84]
          
At  this stage in the litigation it is not necessary to determine
whether  this  exception might apply in this case.   But  in  our
opinion  the exception supports our conclusion that the Magnuson-
Stevens  Act does not preempt all aspects of state regulation  of
fish  caught  in  EEZ  waters.85   Finally,  we  note  that   our
conclusion  on the preemption question is limited to  the  narrow
question whether the CFEC is preempted from requiring interim-use
permits for fishers landing their catches in Alaska; we need  not
decide the extent to which the State is preempted from regulating
other aspects of the halibut and sablefish fisheries.
     F.   State  Permit Requirements Did Not Violate the  Federal
          Constitution.
          The  respondents  argue that AS 16.05.675  and  20  AAC
05.110  are  impermissibly vague so as to deprive the respondents
of  due process in violation of the federal constitution.  Miller
additionally  asserts that the States fee structure for  interim-
use  permits violates the Commerce and Privileges and  Immunities
Clauses of the federal constitution because permits cost less for
Alaska residents than for nonresidents.
          1.   Neither  AS  16.05.675  nor  20  AAC  05.110   was
               impermissibly vague.
               
          The  respondents argue that AS 16.05.675 and  the  pre-
amendment version of 20 AAC 05.110 were unconstitutionally  vague
because  the  provisions did not notify the  respondents  of  the
conduct that is prohibited.  Under the federal constitution,  the
void-for-vagueness   doctrine  requires  a   penal   statute   or
regulation  to be sufficiently clear so that ordinary people  can
understand  what  conduct  is  prohibited.86   Neither   of   the
provisions  at  issue in this case was unclear.   Alaska  Statute
          16.05.675 was unambiguous in its requirement that fishers must
possess  either an entry permit, interim-use permit, or a landing
permit in order to land their catches.87  None of the respondents
possessed  any  of  these permits.88  Similarly,  20  AAC  05.110
required fishers to obtain an entry permit or interim-use  permit
in  order  to possess commercially taken fish in state  waters.89
The  respondents did not possess any type of permit, despite  the
clear  language  of  these provisions.90  We find  that  ordinary
people  could  discern  what was required  of  them  under  these
provisions.
          2.     Millers  constitutional  arguments  are  without
merit.
          Miller  argues  that  the higher permit  fees  assessed
against  nonresidents violate the Privileges and  Immunities  and
Commerce Clauses of the federal constitution. We examined whether
different  rates  can  be  charged for nonresident  and  resident
fishers in the ongoing Carlson litigation.91  In Carlson  II,  we
held  that  fee differentials charged by the CFEC to  nonresident
fishers   for  commercial  fishing  permits  did  not   implicate
interstate  commerce.92   We similarly  hold  that  the  Commerce
Clause  is not implicated here.  We also held in Carlson II  that
different  rates  may  be  charged for resident  and  nonresident
commercial   fishers   without  violating  the   Privileges   and
Immunities  Clause, and we derived a formula for calculating  the
acceptable difference.93
          Relying  in  part  on his preemption  argument,  Miller
attempts to distinguish the Carlson cases on the ground that  the
State  of  Alaska  does not actively mange the  halibut  fishery.
Therefore,  Miller  argues, the CFEC cannot  justify  the  higher
permit  fees  for  nonresident fishers on the basis  that  Alaska
residents  pay  proportionately more in  foregone  benefits  than
nonresidents for fisheries management of the halibut fishery,  as
delineated  in our Privileges and Immunities analysis in  Carlson
I.94  But as we discuss in Part III.E of this decision, the State
is  not  entirely  preempted  from  regulating  halibut  fishers.
Federal  fishers  landing their fish in Alaska  benefit  to  some
degree  from the states fisheries management programs.   And  the
formula  that we set forth in Carlson II and affirmed in  Carlson
III  is based on the per capita contribution of Alaskas residents
to  the  states entire fisheries budget, not just the portion  of
the budget attributable to a particular type of fish.95
          Moreover,  we recognized in Carlson I that  the  proper
way  to  protest a wrongful tax is to protest the payment of  the
tax  at  the  time  of payment in order to subsequently  maintain
either a common law or statutory cause of action.96  In 2001  the
permit  fees  were set at the same 3:1 fee differential  that  we
considered  in  the Carlson cases.97  We did  not  view  the  fee
differential  as being prohibitively burdensome so  as  to  merit
waiver of the payment under protest requirement, and we similarly
do  not  view it as overly burdensome here.  If Miller wishes  to
challenge  the fee structure, the proper method is to obtain  the
license and protest the fees at the time of payment.
IV.  CONCLUSION
          We  REVERSE the decision of the court of appeals.  This
          case is REMANDED for further proceedings.
_______________________________
     1     As  it existed at the time of the citations, 20 Alaska
Administrative Code (AAC) 05.110 (2001) stated:

          Permit Required to Possess Fish or Shellfish.
               (a)   It  is unlawful for any person  to
          possess,   within  water   subject   to   the
          jurisdiction  of  the  state,  any  fish   or
          shellfish,  taken  for a commercial  purpose,
          aboard  a  fishing vessel commonly  used  for
          taking  that  species of  fish  or  shellfish
          unless  the  person has in his  possession  a
          valid   interim-use  or  entry  permit   card
          allowing him to take the fish or shellfish in
          his  possession with the gear with which  the
          vessel  is  equipped  unless  waived  by  the
          commission for good cause.
               (b)    As   used  in  this  section,   a
          commercial   purpose   includes   any   sale,
          purchase,  trade, gift, or any portion  of  a
          commercial transaction.
               (c)   For  purposes of this  section,  a
          person  reporting a landing of fish  under  a
          federal   individual  fishing   quota   (IFQ)
          possesses fish for a commercial purpose.
          
     2    See AS 16.43.225; AS 16.43.240(c).

     3    See AS 16.05.675.

     4    AS 16.05.675.

     5    AS 16.43.210.

6      State  v.  Dupier,  74  P.3d  922,  927-28  (Alaska   App.
2003).

     7    Id. at 923.

     8    As it existed in 2001, AS 16.05.675 stated:

               Landing permits.
               (a)   A  person  who  does  not  hold  a
          limited  entry  permit or interim-use  permit
          issued under AS 16.43 may not deliver or land
          fish in the state unless the person
                    (1)   holds a valid federal  permit
               to  operate commercial fishing  gear  in
               the fishery conservation zone; and
                    (2)   has  been  issued  a  landing
               permit by the Commercial Fisheries Entry
               Commission.
               (b)   The commissioner may by regulation
          establish  eligibility requirements  for  the
          issuance of a landing permit.
               (c)   The commissioner may authorize the
          Commercial  Fisheries  Entry  Commission   to
          issue  landing permits for a fishery  if  the
          commissioner has made a written finding  that
          the  issuance  of  landing permits  for  that
          fishery  is  consistent with  state  resource
          conservation and management goals.
          
     9     AS  16.43.210(a), as amended by ch. 20,  1, SLA  2004.
The amended AS 16.43.210(a) states:

          For  each  fishery that is not subject  to  a
          maximum  number  of entry  permits  under  AS
          16.43.240  and  not subject to  a  moratorium
          under  AS  16.43.225,  the  commission  shall
          issue  interim-use permits under  regulations
          adopted  by  the commission to all applicants
          who  can  establish their present ability  to
          participate actively in the fishery for which
          they are making application.
          
     10   20 AAC 05.110(a) (2001).

     11   20 AAC 05.110(a) (2004).  The amended version of 20 AAC
05.110(a) states in relevant part:

          It  is  unlawful for any person  to  possess,
          within water subject to the jurisdictions  of
          the state, any fish or shellfish, taken for a
          commercial  purpose, aboard a fishing  vessel
          commonly used for taking that species of fish
          or  shellfish unless the person has  in  that
          persons  possession  a valid  interim-use  or
          entry  permit  card  to  take  the  fish   or
          shellfish in that persons possession with the
          gear  with which the vessel is equipped or  a
          landing  permit  for  the  species  of   fish
          possessed unless waived by the commission for
          good cause.
          
     12   McElroy v. Kennedy, 74 P.3d 903, 906 (Alaska 2003).

     13    Langdon  v. Champion, 745 P.2d 1371, 1372 n.2  (Alaska
1987) (citation omitted).

     14    W.  Star Trucks, Inc. v. Big Iron Equip. Serv.,  Inc.,
101 P.3d 1047, 1048 (Alaska 2004).

     15    Alaska  Ctr.  for the Envt v. Rue, 95  P.3d  924,  926
(Alaska 2004).

     16    See, e.g., Deaver v. Auction Block Co., 107 P.3d  884,
888  &  n.4 (Alaska 2005) (observing that the commercial  fishing
industry in Alaska is highly regulated).

     17    Magnuson-Stevens Fishery Conservation  and  Management
Act,  16  U.S.C.   1801-1883 (2000).  The  Act  is  alternatively
referred  to  as the Fishery Conservation and Management  Act  of
1976.

     18    16 U.S.C.  1811 (2000); Proclamation No. 5030, 48 Fed.
Reg. 10605 (March 14, 1983) (creating the EEZ).

     19   16 U.S.C.  1852(a) (2000).

     20     16  U.S.C.  1852(h),  1853,  1854.   The  regulations
governing  the Gulf of Alaska are codified at: Fisheries  of  the
Exclusive  Economic Zone Off Alaska, 50 C.F.R.  679 (2005).   See
United  States  v.  Ertsgaard, 222 F.3d 615, 616  n.1  (9th  Cir.
2000).

     21    Convention for the Preservation of the Halibut Fishery
of the Northern Pacific Ocean and Bering Sea, March 2, 1953, U.S.-
Can., 5 U.S.T. 5 and Protocol Amending the Convention Between the
United  States  and Canada for the Preservation  of  the  Halibut
Fishery  of the Northern Pacific Ocean and Bering Sea, March  29,
1979, U.S.-Can., 32 U.S.T. 2483.

     22    Northern Pacific Halibut Act of 1982, 16  U.S.C.   773
(2000).

     23   16 U.S.C.  773c(c); Erstgaard, 222 F.3d at 617 n.4.

     24   50 C.F.R.  679.  The regulations contained in 50 C.F.R.
679  are  promulgated under the authority of the Magnuson-Stevens
Act,  the  Halibut Act, and the Pacific Salmon Treaty  Act.   See
Erstgaard, 222 F.3d at 618.

25   AS 16.43.010-990.

     26    AS  16.43.010(b).  For a history of the Limited  Entry
Act,  see  Johns  v. Commercial Fisheries Entry Commn,  758  P.2d
1256, 1258 (Alaska 1988).

     27   AS 16.43.100(a)(1).

     28   Former AS 16.43.210.

29     The   State   argues  that  the  2004  amendment   to   AS
16.43.210(a)  serves  as  a  legislative  clarification  of  pre-
existing  law.  But in Hillman v. Nationwide Mut. Fire Ins.  Co.,
we reasoned:  While the legislature is fully empowered to declare
present  law by legislation, it is not institutionally  competent
to  issue  opinions  as to what a statute passed  by  an  earlier
legislature  meant.  758 P.2d 1248, 1252-53  (Alaska  1988).   We
have  followed the Hillman rule in a number of subsequent  cases.
See State, Dept of Revenue v. OSG Bulk Ships, Inc., 961 P.2d 399,
406  n.13 (Alaska 1998); Univ. of Alaska v. Tumeo, 933 P.2d 1147,
1156  (Alaska  1997); Hickel v. Cowper, 874  P.2d  922,  925  n.7
(Alaska  1994);  Flisock v. State, Div. of Ret. &  Benefits,  818
P.2d  640, 645 (Alaska 1991); Wrangell Forest Prods. v. Alderson,
786 P.2d 916, 918 n.1 (Alaska 1990).  In this case, we decline to
treat  the 2004 amendment as a legislative clarification  of  the
pre-existing law.

     30   Former AS 16.43.140(a) provided in 2001:  After January
1,  1974, a person may not operate gear in the commercial  taking
of  fishery  resources without a valid entry permit  or  a  valid
interim-use permit issued by the [CFEC].

     31    See 20 AAC 05.110 (2001).  The other enabling statutes
cited  in  the regulation are AS 16.43.100(b) (granting the  CFEC
power  to  do all things necessary to the exercise of its  powers
under this chapter) and AS 16.43.110 (granting the CFEC authority
to adopt regulations).

     32   AS 16.43.140(a).

     33    Carlson  v.  State (Carlson I), 798  P.2d  1269,  1271
(Alaska 1990).

     34   Id.; see also ch. 105,  19, SLA 1977.

     35     Transmittal  letter  from  Governor  Hammond  to  the
legislature,  1977 Senate Journal 200 (Feb. 4,  1977);  see  also
Letter from Roy A. Rickey, Chairman of the CFEC, to the Honorable
Kay  Poland, Chairman of the Senate Resources Committee (Feb. 23,
1977)  (in  legislative file for S.B. 128); Commercial  Fisheries
Entry Commission, A Report on Senate Bill 128 (Feb. 22, 1977) (in
legislative file for S.B. 128).

     36   Letter from Roy A. Rickey, Chairman of the CFEC, to the
Honorable  Kay Poland, Chairman of the Senate Resources Committee
(Feb. 23, 1977) (in legislative file for S.B. 128).

37   Carlson I, 798 P.2d at 1271.

     38    AS  16.43.140(a).   Gear is defined  as  the  specific
apparatus  used in the commercial harvest of a species, including
but  not limited to purse seines, drift gill nets, set gill nets,
and troll gear.  AS 16.43.990(5).

     39   AS 16.43.210(a).

     40    AS  16.10.267(a)(1) states:  When  a  fisherman  sells
fish,  the  fisherman shall possess (1) a landing  permit,  entry
permit,  or  interim-use  permit issued  or  transferred  to  the
fisherman  under  AS  16.43,  or  other  document  authorized  by
regulation  to be used in place of an entry permit or interim-use
permit.

     41   20 AAC 05.075 (former regulation).

     42   Id.

43    CFEC  Finding  of  Emergency, May 13, 1974,  in  regulation
file for former 20 AAC 05.075.

     44   AS 16.10.267(a) also supports the authority of the CFEC
to  promulgate  20  AAC 05.110, the regulation  under  which  the
respondents are charged, because section .110 is similar  to  and
an  historical successor of former regulation 20 AAC 05.075.   We
note  that  our  discussion of AS 16.10.267 is intended  only  to
illustrate that interim-use permits may serve purposes other than
authorizing  gear  operation.  The  State  apparently  sought  to
charge all three respondents with violating AS 16.10.267, but the
charging  documents  were only served on Miller  and  were  never
filed with the court.

     45    The  respondents additionally note that the State  had
never issued landing permits in 2001.

     46   Ch. 145,  1, SLA 1984.

     47    Letter,  re: CSHB 376 (Res) am. from Attorney  General
Gorsuch to Governor Bill Sheffield (June 21, 1984).

     48   Id.

     49    The  State acknowledges that four sablefish  fisheries
have  been  limited to entry, but asserts that Twohy  could  have
obtained  a statewide interim-use permit for sablefish  under  20
AAC  05.230(a)(8)  that  would not have allowed  him  to  harvest
sablefish in the limited entry areas.

     50   We do not need to decide whether new regulations issued
by the CFEC have broadened the scope of landing permits.

     51    Letter,  re:  CSHB 376 (Res) am from Attorney  General
Gorsuch to Governor Bill Sheffield (June 21, 1984).

     52   AS 16.05.675(c).

53     AS   16.43.210(a)  (the  [CFEC]  shall  issue  interim-use
permits . . . to all applicants).

     54   AS 16.05.675 also supports the authority of the CFEC to
promulgate  20  AAC 05.110.  The statute prohibits delivering  or
landing  fish in the state without a limited entry permit  or  an
interim-use  permit  and the regulation prohibits  possession  of
fish  without such a permit.  The regulation is within the  scope
of  the  statute because one may not deliver or land fish without
also possessing them.

     55   AS 16.05.675.

     56   U.S. Const. art. VI,  2.

     57    Wis.  Pub.  Intervenor v. Mortier, 501 U.S.  597,  604
(1991).

     58   Totemoff v. State, 905 P.2d 954, 958 (Alaska 1995).

     59   State v. F/V Baranof, 677 P.2d 1245, 1249 (Alaska 1984)
(quoting Shaw v. Delta Airlines, Inc., 463 U.S. 85, 95 (1983)).

     60    Mortier,  501 U.S. at 605 (quoting Rice  v.  Santa  Fe
Elevator  Corp.,  331  U.S.  218, 230 (1947));  see  also  Native
Village  of Eklutna v. Alaska R.R. Corp., 87 P.3d 41, 56  (Alaska
2004).

61    1996  Informal  Op. Atty Gen. 15, 1995 WL  1054099  (Alaska
A.G., July 31, 1995).

     62    Id.   The weight accorded to opinions of the  Attorney
General  is largely within our discretion.  In general, they  are
not  controlling  but are entitled to some deference.   State  v.
Kenaitze Indian Tribe, 83 P.3d 1060, 1066 n.22 (Alaska 2004).

     63   16 U.S.C.  773(I) (2000).

     64   Pacific Halibut Fisheries; Catch Sharing Plans, 66 Fed.
Reg. 15806 (March 21, 2001 (to be codified at 50 C.F.R. pt. 300).

     65   Pacific Halibut Fisheries; Catch Sharing Plans, 66 Fed.
Reg. at 15804.

     66   Individual Fishing Quota Management Measures, Sablefish
and Halibut Quota Share, 50 C.F.R.  679.40(a)(3)(v)(A) (2005).

     67   50 C.F.R.  679.40(a)(3)(v)(B).

     68   677 P.2d at 1250.

     69   Id.; 16 U.S.C.  1856(a) (2000).

     70    See  Native  Village  of Eklutna,  87  P.3d  at  56-57
(examining  purpose of federal act to determine whether  Congress
intended to preempt all local and state regulation).

     71   F/V Baranof, 677 P.2d at 1251.

72    Interior  Regl  Hous. Auth. v. James,  989  P.2d  145,  149
(Alaska  1999) (quoting In re J.R.B., 715 P.2d 1170, 1172 (Alaska
1986)).

     73   The respondents may seek to disprove the States factual
assertion on this point at trial.

     74   Miller also argues that the CFEC permit program creates
a  direct  conflict  with  federal law because  it  discriminates
between  residents and nonresidents in violation of  the  Halibut
Act.   The Halibut Act authorizes the Regional Fishery Management
Council to develop fishing regulations so long as the regulations
do  not  discriminate between residents of different states.   16
U.S.C.   773c(c)  (2000).  Miller contends  that  the  CFEC  does
discriminate  against  residents  and  nonresidents  by  charging
different  fees for interim-use permits, and that this creates  a
conflict  with  federal  law.   A decision  that  the  CFECs  fee
schedule  is  preempted by federal law would not resolve  whether
the  CFEC is preempted from requiring interim-use permits for IFQ
holders    it  would  merely invalidate the  fee  schedule.   See
McKesson Corp. v. Div. of Alcoholic Beverages & Tobacco, 496 U.S.
18,  40  (1990) (striking down portion of tax liquor  charged  to
nonresidents  and  noting  that the  State  may  retain  the  tax
appropriately levied upon petitioner . . . because this retention
would deprive petitioner of its property pursuant to a tax scheme
that  is  valid).  But see Toomer v. Witsell, 334 U.S.  385,  403
(1948)  (invalidating entire licensing statute where  it  imposed
unfair fee on nonresidents); United States v. Hagen, 782 F. Supp.
1351,  1363 (D. Neb. 1991).  Moreover, it is not clear that there
is  a  conflict with 16 U.S.C.  773c(c), which merely requires  a
particular  federal agency not to discriminate between  residents
of different states.  16 U.S.C.  773c(c) (2000).

     75   All three respondents argue that the Halibut Act is the
primary  source  of federal preemption for the  halibut  fishery.
Their  preemption  arguments regarding  Twohys  sablefish  charge
focus  on the Magnuson-Stevens Act.  However, Miller argues  that
the  Magnuson-Stevens Act also preempts the CFEC from  regulating
the halibut fishery.

     76   18 U.S.C.  1811(a) (2000).

     77    See  City  of  Charleston, S.C. v. A Fishermans  Best,
Inc.,  310  F.3d  155,  175  (4th  Cir.  2002)  (concluding  that
municipal regulation prohibiting longline vessels from landing at
citys  maritime  center was preempted by  1811);  S.E.  Fisheries
Assn,  Inc.  v.  Chiles,  979 F.2d 1504, 1510  (11th  Cir.  1992)
(indicating that state catch limits on Spanish mackerel landed in
Florida  were  preempted  by   1811  and  remanding  for  further
proceedings);  State v. Sterling, 448 A.2d 785, 787  (R.I.  1982)
(stating in dicta that Magnuson-Stevens Act preempted state catch
limits for yellowtail flounder).

     78   Id.

     79    See La. Seafood Mgmt. Council, Inc. v. Foster, 917  F.
Supp.  439, 443 (E.D. La. 1996) (upholding state regulation  that
applied  only in state waters); People v. Weeren, 607 P.2d  1279,
1287  (Cal.  1980) (concluding that California could  regulate  a
California-registered vessel outside its waters so long as  there
was no conflict with federal law); Raffield v. State, 565 So.  2d
704,   705   (Fla.   1990)  (concluding  that  state   regulation
prohibiting  landing  of red fish with  a  purse  seine  did  not
violate Magnuson-Stevens Act).

     80   9 P.3d 291, 294 (Alaska App. 2000).

81   50 C.F.R.  679.40(a)(4).

     82   50 C.F.R.  679.40(a)(3)(v)(A) (emphasis added).

     83   See Kalve, 9 P.3d at 294.

     84   16 U.S.C.  1856(a)(3) (2000).

     85    See  Foster, 917 F. Supp. at 443; Weeren, 607 P.2d  at
1286.

     86    Treacy v. Municipality of Anchorage, 91 P.3d 252, 260-
61 (Alaska 2004).

87     Former   AS   16.05.675;  see  supra   text   of   statute
accompanying note 8.

     88    Dupier  states in two affidavits that he attempted  to
procure  the  appropriate state permits but was  given  incorrect
information  by  state officials.  Under our  case  law,  private
parties  may  invoke estoppel against the state under exceptional
circumstances  as  a  means  to  avoid  injustice.   See   Alaska
Trademark  Shellfish,  LLC v. State, 91  P.3d  953,  960  (Alaska
2004).   Dupier  does not ask us to invoke this equitable  remedy
here,   so   we  do  not  consider  whether  estoppel  might   be
appropriate.  Dupier is free to pursue this argument on remand.

     89   20 AAC 05.110 (2001).

     90    As  we  discuss in Part III.C.1 of this decision,  the
meaning   of   the  pre-amendment  AS  16.43.210  was  ambiguous.
However,  that statute concerns the scope of the States authority
to  require  interim-use permits of federally-permitted  fishers,
not  the  requirement  that fishers obtain  permits.   The  penal
provisions under which the respondents were charged, AS 16.05.675
and 20 AAC 05.110, do not contain ambiguous language.

     91    State,  Commercial Fisheries Entry  Commn  v.  Carlson
(Carlson  III),  65  P.3d 851 (Alaska 2003);  Carlson  v.  State,
Commercial  Fisheries Entry Commn (Carlson  II),  919  P.2d  1337
(Alaska 1996); Carlson I, 798 P.2d at 1269.

     92   Carlson II, 919 P.2d at 1340.

     93   Id. at 1342.

     94   Carlson I, 798 P.2d at 1278.

     95    Carlson III, 65 P.3d at 875; Carlson II, 919  P.2d  at
1343.

     96    Carlson  I,  798 P.2d at 1280 (quoting Principal  Mut.
Life  Ins.  Co.  v. State, Div. of Ins., 780 P.2d  1023,  1028-30
(Alaska 1989)); see also Carlson III, 65 P.3d at 869.

     97    See  former 20 AAC 05.240(a)(4) (repealed 12/21/2002).
The  price range for resident commercial fishing permits in  2001
was $15 to $250 and the range for nonresident permits was $45  to
$750.