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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. The Alaska Fish & Wildlife Conservation Fund v. State, Dept. of Fish & Game, Board of Fisheries (12/7/2012) sp-6731

The Alaska Fish & Wildlife Conservation Fund v. State, Dept. of Fish & Game, Board of Fisheries (12/7/2012) sp-6731

        Notice: This opinion is subject to correction before publication in the PACIFIC  REPORTER . 

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THE ALASKA FISH & WILDLIFE                     ) 

CONSERVATION FUND and                          )       Supreme Court Nos. S-14079/14099 

THE CHITINA DIPNETTERS                         ) 

ASSOCIATION, INC.,                             )       Superior Court No. 4FA-09-00966 CI 


                        Appellants and         )       O P I N I O N 

                        Cross-Appellees,       ) 

                                               )       No. 6731 - December 7, 2012 

        v.                                     ) 


STATE OF ALASKA,                               ) 

DEPARTMENT OF FISH & GAME,                     )

BOARD OF FISHERIES, and                        )

AHTNA TENE NENÉ,                               )


                        Appellees and          )

                        Cross-Appellants.       )


                Appeal   from     the   Superior   Court   of   the   State   of   Alaska, 

                Fourth Judicial District, Fairbanks, Michael A. MacDonald, 


                Appearances:      Michael    C.   Kramer,    Borgeson     &   Kramer, 

                Fairbanks, for Appellants/Cross-Appellees. Lance B. Nelson, 

                Senior Assistant Attorney General, Anchorage, and John J. 

                Burns,     Attorney    General,    Juneau,     for  Appellee/Cross- 

                Appellant State of Alaska. John M. Sky Starkey, Anchorage, 

                for Appellee/Cross-Appellant Ahtna Tene Nené. 

                Before:     Carpeneti,     Chief    Justice,  Fabe,    Winfree,    and 

                Stowers, Justices. [Christen, Justice, not participating.] 

----------------------- Page 2-----------------------

                CARPENETI, Chief Justice. 


                In 1999, the Board of Fisheries (the Board) made a positive customary and 

traditional use finding in the Chitina subdistrict for the first time, thereby changing it 

from a "personal use" to a "subsistence" fishery.             The Board reversed this decision in 

2003,   returning   Chitina   to   a   personal   use   fishery.    The   Alaska   Fish   and   Wildlife 

Conservation Fund (AFWCF) and the Chitina Dipnetters Association, Inc., after asking 

the Board to reconsider its 2003 finding in both 2005 and 2008,1 brought this suit to 

challenge the Board's negative customary and traditional use finding for Chitina.  They 

claimed     that   the   regulation   used   by   the   Board   to  make  such   a   finding,   5  Alaska 

Administrative Code (AAC) 99.010(b), was  unconstitutional on its face and as applied. 

The superior court held that the regulation was valid and constitutional, but remanded 

for   the   Board    to  fully   articulate   the  standard     being   used    in  its  application    of 

5   AAC   99.010(b)(8).       It   also   instructed   the   Board   not   to   consider   "the   per   capita 

consumption of wild food in the home community of various users" upon remand.  On 

remand, the Board codified a definition of "subsistence way of life," allowed the parties 

to submit evidence, and upheld its previous classification.   Because 5 AAC 99.010(b) is 

consistent with its authorizing statutes, is reasonable and not arbitrary, does not violate 

the Alaska Constitution's equal access provisions, and was constitutionally applied when 

the Board made its customary and traditional use finding for the Chitina fishery in 2003, 

        1       AFWCF is a nonprofit corporation and sister organization to the Alaska 

Outdoor Council (AOC), an association of clubs and individual members dedicated to 

the   preservation   of   outdoor   pursuits   in   Alaska.   AFWCF's   mission   is   to   assist   AOC 

through education, research, and litigation.           The Chitina Dipnetters Association is an 

organizational member of AOC that lobbies for and proposes changes to the dipnet 

regulations   in   Chitina.    Because   AFWCF   is   the   litigating   party   representing   these 

organizations, we refer to both groups collectively as AFWCF throughout this opinion. 

                                                   -2-                                             6731

----------------------- Page 3-----------------------

we affirm this portion of the superior court's rulings.  Because there is no indication that 

the Board actually relied on the per capita consumption of wild foods in the users' home 

communities when applying 5 AAC 99.010(b) and because that information may be 

relevant to the subsistence inquiry, we reverse this ruling by the superior court. 


        A.      Facts 

                The Chitina fishery is located along the Copper River, about 250 miles east 

of Anchorage and 250 miles south of Fairbanks.   The Ahtna Tene Nené (Ahtna) people 

have been fishing in the Copper River Basin for at least the past millennium.  The Ahtna 

people originally utilized dipnets to catch salmon, but they later adopted fishwheels, 

which provided a more efficient means to catch large numbers of fish.   After World War 

II, the construction of highways from Alaska's population centers brought many non- 

Natives to the area who adopted the Ahtna methods of dipnet fishing. 

                In the 1970s, the Board split the basin into two subdistricts separated by the 

Chitina-McCarthy Road Bridge:  the Chitina subdistrict to the south and the Glennallen 

subdistrict   to   the   north. Due   to   differences   between   dipnet   and   fishwheel   fishing 

methods, Chitina was more popular with non-Natives and visitors while Glennallen was 

largely populated by Natives and year-round residents.              As AFWCF noted: 

                Dipnetters could fish more effectively [south of] the bridge, 

                where     high   canyon    walls   surrounding     a  deep,   fast  river 

                resulted    in   salmon    being    concentrated     in  back    eddies. 

                Fishwheelers   .   .   .   found   productive   fishing   [north   of]   the 

                bridge,   where     braiding   of  the  river  resulted    in  a  slower 

                current and numerous spots where a wheel could more easily 

                be set up, tended, and maintained. 

Non-locals preferred dipnets because they were easier to transport, did not require a 

permanent presence near the river, and suitable dipnet sites were more easily accessible. 

                                                  -3-                                             6731

----------------------- Page 4-----------------------

               The Board first examined the use of Chitina salmon stocks in 1984; by 

examining only uses by rural residents, it found no customary and traditional subsistence 

uses of salmon in the Chitina subdistrict.        The Chitina area was then designated for 

"personal use," open to all residents for dipnet fishing, while the Glennallen area was 

classified for "subsistence use," thereby open only to local residents who could use either 

fishwheels or dipnets. 

               After our 1985 decision in Madison v. Alaska Department of Fish and 

Game,2 the Board briefly reclassified all personal use fisheries as subsistence fisheries. 

In 1986, the Legislature rewrote the subsistence statute3   to comply with our decision in 

Madison    and    the   Board  of   Fisheries   and  Board  of   Game   jointly  adopted  5  AAC 

99.010(b), which listed the eight criteria used to determine if fish or game populations 

were being customarily and traditionally used for subsistence (commonly referred to as 

a "C & T determination").4     After the revised subsistence statute was enacted, the Board 

        2      696 P.2d 168 (1985) (holding that the Board's criteria for Tier II users that 

were based on proximity to the resource were inconsistent with the first subsistence 


        3      See ch. 52, § 6, SLA 1986 (codified as AS 16.05.258). 

        4      5 AAC 99.010(b) provides: 

               Each board will identify fish stocks or game populations, or 

               portions of stocks or populations, that are customarily and 

               traditionally taken or used by Alaska residents for subsistence 

               uses by considering the following criteria: 

               (1) a long-term consistent pattern of noncommercial taking, 

               use, and reliance on the fish stock or game population that 

               has been established over a reasonable period of time of not 

               less    than   one   generation,    excluding     interruption    by 

               circumstances       beyond     the   user's    control,   such    as 


                                               -4-                                          6731

----------------------- Page 5-----------------------

reinstated a personal use classification to the Chitina subdistrict.               The Board continued 

to label the Chitina fishery as a personal use fishery until 1999, when it made a positive 

customary and traditional use determination.  In 2003, the Board revisited the issue once 

again;     it  held  a  seven-day      regulatory    meeting     and   invited    public   comment       and 

participation.      After    reviewing     the   extensive    evidence     presented,     it  changed    the 

classification of Chitina back to personal use.           The Board was asked          to reconsider this 

        4	       (...continued) 

                 unavailability     of   the  fish   or  game    caused    by   migratory 


                 (2) a pattern of taking or use recurring in specific seasons of 

                 each year; 

                 (3)  a   pattern   of   taking   or   use   consisting   of   methods   and 

                 means   of   harvest   that   are   characterized   by   efficiency   and 

                 economy of effort and cost; 

                 (4)  the   area   in   which   the   noncommercial,   long-term,   and 

                 consistent pattern of taking, use, and reliance upon the fish 

                 stock or game population has been established; 

                 (5) a means of handling, preparing, preserving, and storing 

                 fish   or   game     that  has   been    traditionally    used    by   past 

                 generations, but not excluding recent technological advances 

                 where appropriate; 

                 (6) a pattern of taking or use that includes the handing down 

                 of knowledge of fishing or hunting skills, values, and lore 

                 from generation to generation; 

                 (7) a pattern of taking, use, and reliance where the harvest 

                 effort or products of that harvest are distributed or shared, 

                 including customary trade, barter, and gift-giving; and 

                 (8)   a  pattern   that  includes    taking,    use,  and   reliance    for 

                 subsistence purposes upon a wide diversity of fish and game 

                 resources and that provides substantial economic, cultural, 

                 social, and nutritional elements of the subsistence way of life. 

                                                    -5-	                                              6731

----------------------- Page 6-----------------------

classification in 2005 and 2008, but it declined, finding no new evidence that warranted 

reconsideration of its personal use classification for the Chitina fishery. 

        B.      Proceedings 

                On   January   13,   2009,   shortly   after   the   Board   refused   to   reclassify   the 

Chitina fishery at its 2008   meeting, AFWCF filed its First Amended Complaint for 

Declaratory Judgment and Injunctive Relief.            AFWCF claimed that 5 AAC 99.010(b) 

was unconstitutional on its face and as applied.          The State of Alaska, Alaska Board of 

Fisheries, and Alaska Department of Fish and Game (the State) filed their answer on 

February 23, 2009.   AFWCF filed a motion for summary judgment on March 12, 2009. 

Ahtna moved to intervene and filed an answer to the original complaint on April 16, 

2009.    The State and Ahtna then filed cross-motions for summary judgment, and oral 

argument on all motions was held on June 24, 2009. 

                On December 31, 2009, the superior court issued a decision and order 

granting declaratory judgment largely for the State and Ahtna. Specifically, it found that 

the regulation itself was valid; that the Board's classification does not violate the uniform 

application and   equal protection provisions of the Alaska Constitution; and that the 

Board properly applied 5 AAC 99.010(b), except with regard to criterion eight.                   With 

regard   to   criterion   eight,   the   superior   court   found   that   the   Board   failed   to   properly 

articulate the objective standard being used.  Accordingly, the court remanded the case 

and instructed the Board to define the term "subsistence way of life" as used in criterion 

eight of its regulation, allow the plaintiffs an opportunity to supplement the record given 

that new definition, and then reapply the regulation consistent with that new evidence. 

The court also ordered the Board not to consider per capita consumption of wild foods 

in users' home communities. 

                On remand, the Board generated a proposal to define "subsistence way of 

life" for purposes of customary and traditional use findings and, after public notice and 

                                                  -6-                                            6731

----------------------- Page 7-----------------------

a hearing, adopted the regulation.   After receiving a report of agency action on remand 

in April 2010 and holding a status conference regarding the new regulations, the superior 

court granted final judgment on October 21, 2010.  AFWCF now appeals.  The State and 

Ahtna cross-appeal to contest the superior court's conclusion that it was improper for the 

Board     to  consider   the  per  capita  consumption      of  wild  foods   in  the  users'  home 

communities in applying 5 AAC 99.010(b)(8). 


                Whether summary judgment was properly granted is a question of law and 

is reviewed de novo.5     In matters involving agency regulations, we will "substitute our 

judgment for that of the [B]oard when interpreting the Alaska Constitution and issues of 

law."6  However, if a case may be fairly decided on statutory grounds or on an alternative 

basis, we will not address the constitutional issues.7 

                When reviewing the Board's policy or the Board's application of law to a 

particular    set  of  facts,  decisions  that  are  based   on   Board   expertise,   we   apply   a 

reasonableness      standard.8   "When      a  regulation  is  adopted   in  accordance    with   the 

Administrative Procedure Act, and the legislature intended to give the agency discretion, 

we review the regulation by ascertaining whether the regulation is consistent with its 

        5       State, Dep't of Fish & Game v. Manning, 161 P.3d 1215, 1219 (Alaska 


        6       Koyukuk River Basin Moose Co-Mgmt. Team v. Bd. of Game , 76 P.3d 383, 

386 (Alaska 2003). 

        7       State, Dep't of Health & Soc. Servs. v. Valley Hosp. Ass'n, 116 P.3d 580, 

584 (Alaska 2005); Alaska Trademark Shellfish, LLC v. State, Dep't of Fish & Game , 

91 P.3d 953, 957 (Alaska 2004) (appeals should not be decided on constitutional grounds 

when narrower grounds are available). 

        8       Koyukuk , 76 P.3d at 386. 

                                                 -7-                                          6731

----------------------- Page 8-----------------------

authorizing   statutory   provisions   and   whether   'the   regulation   is   reasonable   and   not 

arbitrary.' "9 


        A.	      5 AAC 99.010(b) Is Facially Valid And Constitutional. 

                 1.	     5   AAC     99.010(b)   is   consistent   with   its   authorizing   statutes, 

                         reasonable, and not arbitrary. 

                 Alaska Statute 16.05.251(a)(6) states that "[t]he Board of Fisheries may 

adopt regulations it considers advisable . . . for . . . classifying as commercial fish, sport 

fish, guided sport fish, personal use fish, subsistence fish, or predators or other categories 

essential   for   regulatory   purposes   .   .   .   ." The   superior   court   held   that   this   statutory 

mandate plainly authorized the Board to classify a fish stock as subsistence or personal 

use.   The superior court noted that the subsistence statute, AS 16.05.258, requires the 

Board of Fisheries to "identify the fish stocks . . . that are customarily and traditionally 

taken or used for subsistence."10  The superior court rejected AFWCF's argument that the 

        9        State    v.  Kenaitze    Indian    Tribe,   83   P.3d    1060,   1064    (Alaska     2004) 

(footnotes omitted) (quoting Interior Alaska Airboat Ass'n v. State, Bd. of Game , 18 P.3d 

686, 689-90 (Alaska 2001)). 

        10       AS 16.05.258(a).   The terms "customary and traditional" and "subsistence 

uses" are defined in AS 16.05.940. AS 16.05.940(7) defines "customary and traditional" 

as "the noncommercial, long-term, and consistent taking of, use of, and reliance upon 

fish or game in a specific area and the use patterns of that fish or game that have been 

established over a reasonable period of time taking into consideration the availability of 

the fish or game."   AS 16.05.940(33) defines "subsistence uses" as "the noncommercial, 

customary and traditional uses of wild, renewable resources by a resident . . . of the state 

for   direct   personal   or   family   consumption   as   food,   shelter,   fuel,   clothing,   tools,   or 

transportation, for the making and selling of handicraft articles out of nonedible by- 

products of fish and wildlife resources taken for personal or family consumption, and for 

the   customary   trade,   barter,   or   sharing   for   personal   or   family   consumption;   in   this 

paragraph, 'family' means persons related by blood, marriage, or adoption, and a person 


                                                    -8-	                                              6731

----------------------- Page 9-----------------------

subsistence statutes are sufficiently defined such that adopting regulations is unnecessary, 

reasoning that "clarification is often necessary" in the area of subsistence policy and 

"[a]dopting regulations such as 5 AAC 99.010 is within the discretion of the agency." 

These statutes instruct the Board to inquire into "the taking of, use of and reliance upon 

fish for subsistence purposes."  In 5 AAC 99.010(b), the Board of Fisheries did just that; 

it   created  eight   criteria  that   it   will   consider  when  identifying    fish  stocks   that   are 

customarily and traditionally taken or used for subsistence.11              The superior court went 

through each criterion and explained how each furthers the subsistence inquiry and helps 

the Board distinguish between subsistence and other uses.                The superior court rejected 

AFWCF's argument that the criteria result in an improper rural preference or improper 

kinship requirement and upheld the constitutionality of the regulation. 

                AFWCF brings several challenges to the constitutionality of the regulation. 

First, it maintains that 5 AAC 99.010(b) is invalid because it is "not consistent with, 

reasonably necessary to implement, or a reasonable interpretation of the subsistence 

statute"   because   "the   subsistence   statute   was   designed   and   intended   to   protect   the 

subsistence rights of urban Alaskans, specifically the rights of Fairbanks based Chitina 

dipnetters."    Thus, AFWCF claims that the regulation is invalid because it declines a 

subsistence classification for the preferred fishing area of these urban residents. AFWCF 

explains that the current regulation originated with an effort by the joint boards to limit 

subsistence classifications to rural residents.         Although the law no longer contains this 

        10      (...continued) 

living in the household on a permanent basis." 

        11      See supra note 4. 

                                                   -9-                                                6731 

----------------------- Page 10-----------------------

explicit   limitation,   which   was   invalidated   by   our   decision   in  McDowell   v.   State ,12 

AFWCF argues the regulation is still designed to bring about the same result. 

                We reject the assertion that the statute necessarily leads to an impermissible 

urban/rural distinction even though part (a) was previously invalidated; if anything, the 

Board's   1999   determination   indicates   the   falsity   of   this   premise.    If   AFWCF   is   to 

successfully contest the constitutionality of part (b) of the regulation, it must identify a 

problem with part (b) instead of hinging claims on the already-invalidated part (a) and 

alleging that the same issues carry over to corrupt part (b) as well. 

                AFWCF also argues that the subsistence statute is "clear and complete" and 

does not require further application of agency expertise because it includes a definition 

of   "customary      and   traditional"   and   "subsistence     uses."   AFWCF        asserts  that   the 

regulation is used to "justify comparing user groups rather than uses of the fish stock or 

game population."        AFWCF also contends that the eight enumerated criteria are not 

necessary to implement the subsistence statute because, rather than clarifying ambiguous 

statements by the legislature, the regulation introduces criteria that have no statutory 

basis and "inevitably lead to determinations in favor of rural residents that live near the 

resource and against non-rural users who travel to the resource."                It also claims that by 

requiring   the   Board   to   examine   community   use   patterns,   the   regulation   leads   to   an 

impermissible focus on users rather than uses, which we struck down in Payton v. State .13 

        12      785 P.2d 1 (Alaska 1989) (subsistence statute cannot limit admission to 

subsistence user group to rural residents). 

        13      938 P.2d 1036 (Alaska 1997).  In Payton , we held that "the Board did not 

err in considering the presence of 'successive generations,' but that it did err when it 

required the current users of salmon to be related to past generations of users" when 

applying   5   AAC   99.010(b).       Id.   at   1042. We   acknowledged   that   the   Board   must 


                                                  -10-                                             6731

----------------------- Page 11-----------------------

Based   upon   these   conclusions,   AFWCF   asks   us   to   invalidate   the   entire   regulation 

because it "inappropriately restricts [AFWCF's] ability to establish a subsistence fishery 

by   imposing   standards   that   shift   the   focus   of   the   C   &   T   inquiry   from   the   statutory 

requirements of consistency and duration to unrelated considerations such as the cultural, 

social, and economic context in which the harvest takes place." 

                 We decline AFWCF's request and instead hold that 5 AAC 99.010(b) is 

constitutional, consistent with its enabling statute and reasonably necessary to carry out 

the purposes of the subsistence statute.   Alaska Statute 16.05.251(a)(6) explicitly gives 

the Board authority to adopt regulations for classifying fisheries as commercial, sport, 

personal use, subsistence or other.           Alaska Statute 16.05.258(a) requires the Board of 

Fisheries to "identify the fish stocks . . . that are customarily and traditionally taken or 

used   for   subsistence."     When   read   together,   these   statutes   allow   the   Board   to   create 

regulations for classifying fish and for identifying the particular fish stocks that align with 

subsistence use patterns.  We also reject AFWCF's assertions that the subsistence statute 

is clear enough on its own terms so that this regulation is unnecessary and it is only used 

to implement a rural bias.         The subsistence statute provides a general definition of the 

requirements for subsistence use, but the regulation provides definitions of each specific 

component and guidelines for how they should be applied.   The joint Board of Fisheries 

and   Board   of   Game   enacted   5   AAC   99.010(b)   to   provide   a   list   of   criteria   that   were 

relevant to consider when fulfilling their statutory mandate. 

         13      (...continued) 

determine if customary and traditional uses exist in a given area to make a subsistence 

classification, but held that it may not require a familial relationship between current 

residents and prior generations.  Id . 

                                                    -11-                                                  6731 

----------------------- Page 12-----------------------

                 AFWCF        argues    that   the   subsistence     statute   was    intended    to   grant 

subsistence rights to any long-term users of an area, but this argument ignores the clear 

legislative intent in passing AS 16.05.940, which was to provide for actual subsistence 

uses and preserve a traditional culture and way of life.14           AFWCF cites Madison v. State, 

Department of Fish & Game 15 in support of its proposition, but Madison only barred the 

complete exclusion of urban residents from the classification of subsistence users, it did 

not state that the   subsistence statute was meant to classify those who do not have a 

"traditional, social, or cultural relationship to and dependence upon the wild renewable 

resources produced by Alaska's land and water" as subsistence users.16 

                 AFWCF also maintains that it is improper for the Board to consider the 

"cultural, social and economic context in which harvest takes place," but as noted above 

the   legislature   specifically   intended   the   Board   to   take   this   information   into   account. 

Personal   use   fisheries   may   meet   the   subsistence   statute's   consistency   and   duration 

requirements, but they may also fail to carry the cultural, social, spiritual, and nutritional 

importance that the subsistence statute protects.17            Since 5 AAC 99.010(b) is consistent 

with its authorizing statutes and is reasonable and not arbitrary, it is valid. 

         14      Ch.   1,   §  1(a)(3),   SSSLA     1992    ("[C]ustomary   and   traditional   uses   of 

Alaska's fish and game originated with Alaska Natives, and have been adopted and 

supplemented   by   many   non-Native   Alaskans   as   well;   these   uses   among   others,   are 

culturally, socially, spiritually, and nutritionally important and provide a sense of identity 

for many subsistence users."). 

         15      696 P.2d 168 (Alaska 1985). 

         16      See id.; see also ch. 1, § 1(a)(1), SSSLA 1992 for intent of the subsistence 


         17      Ch. 1, § 1(a)(3), SSSLA 1992. 

                                                    -12-                                              6731

----------------------- Page 13-----------------------

                 2.	     5 AAC 99.010(b) does not violate the equal access provisions of 

                         Article VIII of the Alaska Constitution. 

                 AFWCF also challenges the regulation as a violation of the equal access 

provisions   of   article   VIII   of   the   Alaska   Constitution,   specifically   citing   sections   3 

(Common Use),18	 15 (No Exclusive Right of Fishery),19 and 17 (Uniform Application).20 

The   superior   court   held   that   article   VIII's   equal   protection   and   uniform   application 

provisions were not implicated by the Board's classification of the Chitina fishery.  The 

court explained that the equal access provisions protect disparate treatment of similarly 

situated users, not disparate classifications of fish stocks.             As the court stated, "[t]here 

is no constitutional requirement that the resource itself be treated equally in each area 

where   it   is   found."    The   fact   that   residents   may   have   to   travel   to   participate   in   a 

subsistence fishery outside their preferred area does not mean equal access has been 

denied or the constitution has been violated.21 

         18      Alaska Const. art. VIII, § 3 provides:   "Wherever occurring in their natural 

state, fish, wildlife, and waters are reserved to the people for common use." 

         19      Alaska Const. art. VIII, § 15 provides, in relevant part:   "No exclusive right 

or special privilege of fishery shall be created or authorized in the natural waters of the 

State.   This section does not restrict the power of the State to limit entry into any fishery 

. . . ."  AFWCF cited Section 5, not Section 15, as a part of the equal access clauses in its 

opening   brief   but   this   was   apparently   a   typographical   error,   as   Section   5   deals   with 

"facilities and improvements." 

        20       Alaska Const. art. VIII, § 17 provides: "Laws and regulations governing the 

use or disposal of natural resources shall apply equally to all persons similarly situated 

with reference to the subject matter and purpose to be served by the law or regulation." 

        21       See State v. Kenaitze Indian Tribe, 894 P.2d 632, 640-41 (Alaska 1995) 

("Inconvenience is in no sense the equivalent of a bar to eligibility for participation in 

subsistence hunting and fishing and does not suffice to trigger an analysis under the equal 

access clauses . . . .     The fact that residents of nonsubsistence areas must travel in order 


                                                    -13-	                                              6731

----------------------- Page 14-----------------------

                AFWCF maintains that the "eight criteria [of 5 AAC 99.010(b) have] so 

often been misapplied by the Boards and by Superior Court judges and have led to so 

many equal protection violations that this Court must strike the entire regulation."  The 

core of AFWCF's argument is that this regulation allows the Board to impermissibly 

distinguish among users, not among uses, in violation of the equal access provisions in 

article VIII of the Alaska Constitution.         AFWCF relies on our decisions in Madison ,22 

State v. Morry,23    and McDowell v. State24 to argue that all Alaskans are eligible to be 

subsistence users.      It then claims that 5 AAC 99.010(b) deprives Alaskan dipnetters of 

the equal access rights vindicated in these decisions because it treats the urban dipnetters 

as non-subsistence users. According to AFWCF, this regulation implements an "implicit 

rural preference" and therefore must be invalidated.25 

        21      (...continued) 

to utilize subsistence permits is not a limitation to their admission to a user group."). 

        22      696 P.2d 168 (Alaska 1985) (regulation limiting subsistence uses to uses 

by rural residents inconsistent with authorizing statute). 

        23      836 P.2d 358 (Alaska 1992) (the Board lacked statutory authority to adopt 

eligibility criteria for first tier subsistence users). 

        24      785   P.2d    1   (Alaska  1989)   (statute   limiting  subsistence   users   to   rural 

residents unconstitutional under article VIII). 

        25      In McDowell , we held that the portion of the 1986 subsistence statute that 

limited the subsistence user classification to rural residents was per se impermissible and 

violated the equal access clauses of the Alaska Constitution.  McDowell, 785 P.2d at 12; 

see also State v. Manning , 161 P.3d 1215, 1220 (Alaska 2007) (holding subsistence 

statute's overt residency requirement impermissible per se and under equal protection 

analysis). AFWCF relies on McDowell  as the basis for its equal protection argument 

here, but in McDowell we clarified that not all regulations distinguishing among users 

are impermissible, but "only that the residency criterion used in the 1986 act which 

conclusively excludes all urban residents from subsistence hunting and fishing . . . is 


                                                 -14-                                            6731

----------------------- Page 15-----------------------

               We agree with the superior court that this regulation does not implicate the 

equal access, uniform application, or equal protection clauses of either the state or federal 

Constitutions.26   The regulation affects the classification of fisheries, but does not subject 

any user group, i.e., urban or rural users, to disparate treatment.         It does not affect any 

individual's ability to obtain a subsistence permit or to utilize that permit in a subsistence 

area, but merely decides whether the use patterns in that specific area support a finding 

of customary and traditional uses.  This regulation does not affect any user's admission 

to a user group and none of the criteria are based on residency; therefore, it does not 

violate the holdings of McDowell and its progeny.  Citizens do not have a constitutional 

right to have a subsistence fishery in their preferred area; although this determination 

denies a subsistence priority in the Chitina subdistrict, it is not per se unconstitutional. 

        B.	    The Board's Application Of 5 AAC 99.010(b) To The Chitina Fishery 

               In 2003 Was Proper. 

               The superior court held that the Board's application of 5 AAC 99.010(b) to 

the   Chitina   fishery  in  2003  was   proper   except   for  the  unreasonable    and  arbitrary 

application of criterion eight.    The superior court correctly noted that its review of the 

Board's determination was limited to ensuring that "the agency has taken a hard look at 

the salient problems and has genuinely engaged in reasoned decision-making."27                 The 

court     found    that   the   Board     generally    met    this   standard    when     applying 

5 AAC 99.010(b)(1) - (7), but it also found that the Board "employed varying, ill-defined, 

subjective    definitions   of  the  requirement    that  salmon   stock   be  used  as  part  of  a 

        25     (...continued) 

unconstitutional."    McDowell , 785 P.2d at 9. 

        26     See Alaska Const. art VIII; U.S. CONST . amend. XIV, §1. 

        27     Libertarian Party of Alaska, Inc. v. State , 101 P.3d 616, 622 (Alaska 2004). 

                                               -15-	                                          6731

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'subsistence way of life' " when applying criterion eight.       The court held that reasoned 

decision-making required the application of an objective definition that was supported by 

law and remanded the case to the Board so it could formulate and apply a "definite, 

shared, and objective definition of criterion eight's 'subsistence way of life' requirement." 

Upon remand, the Board generated a proposal to define "subsistence way of life" for 

purposes of customary and traditional use determinations and, after public notice and a 

hearing,   adopted   the  regulation.28  After   applying   this  new   definition,  the  Board 

maintained its classification of the Chitina fishery as personal use.       The superior court 

accepted the Board's revised application of the regulation and entered final judgment. 

               AFWCF argues that "[t]he transcript of Board deliberations shows clearly 

and convincingly that the Board focused primarily on the users rather than the use" while 

applying the eight criteria of 5 AAC 99.010(b) in 2003.   AFWCF specifically takes issue 

with the application of criteria one, three, five, six, and eight, claiming that the Board 

impermissibly compared user groups when analyzing these factors.  AFWCF maintains 

that instead of remanding to the Board to clarify the standard it used when applying 

criterion eight, the trial court should have struck the regulation in its entirety.  It further 

argues that the subsistence statute already clearly defined what is meant by a "subsistence 

way of life" in its definition of "subsistence uses" and that the Board should not have 

been "ordered to again create its own subjective definition."  Even as amended, AFWCF 

continues to object to criterion (b)(8) on the grounds that it "seems to require a user who 

can claim that the resource is necessary to provide the basic necessities of life" and 

declares that the Board will respect these claims only when made by rural indigenous 

       28      The Board's new regulation defined "subsistence way of life" as "a way of 

life that is based on consistent, long-term reliance upon fish and game resources for the 

basic necessities of life."  5 AAC 99.005 (Effective June 10, 2010). 

                                             -16-                                          6731 

----------------------- Page 17-----------------------

users.  In support, AFWCF points out that in 2003 the Board was "specifically directed 

to compare Native use in Glennallen with non-Native use in Chitina" whereas the Board 

in 1999 was "specifically cautioned against comparing Native use and non-Native use" 

in the wake of our decision in Payton v. State .29      AFWCF argues that the report from the 

Division of Subsistence, which the Board relied on while reexamining its classification 

for Chitina in 2003, emphasized this improper Native/non-Native comparison and led the 

Board in 2003 to improperly apply its own regulation. 

                The Board's application of 5 AAC 99.010(b) was proper.               As we noted in 

the previous section, the subsistence statute provides guidance for interpreting its terms, 

but the Board still has discretion to define its key terms, such as "long-term," "reliance," 

and "subsistence way of life."30   As long as the Board employs an objective standard in 

doing so, its application of the statute is valid.31     The Board must take a hard look at the 

        29      938 P.2d 1036 (Alaska 1997); see also McDowell v. State, 785 P.2d 1 

(Alaska 1989) (subsistence statute cannot limit admission to subsistence user group to 

rural residents). 

        30      See   Libertarian     Party,  101   P.3d   at  622   ("In  determining     whether    a 

regulation is reasonable and not arbitrary courts are not to substitute their judgment for 

the judgment of the agency.        Therefore review consists primarily of ensuring that the 

agency   has taken   a hard   look   at the salient problems and   has genuinely   engaged   in 

reasoned decision making.") (citations omitted); see also Lakloey, Inc. v. Univ. of Alaska , 

157   P.3d   1041,   1045   (Alaska   2007)   ("When   reviewing   the   merits   of   an   agency's 

decision . . . the 'reasonable and not arbitrary' test applies to questions about agency 

regulations and the agency's interpretation of those regulations."). 

        31      See Alaska Exch. Carriers Ass'n v. Regulatory Comm'n of Alaska, 262 P.3d 

204,   208-09   (Alaska   2011)   ("When   a   matter   involves   agency   expertise   we   apply   a 

'reasonable basis' test, giving deference to the agency's specialized   knowledge and 

expertise.") (citations omitted). 

                                                 -17-                                           6731

----------------------- Page 18-----------------------

relevant criteria and engage in reasoned decision-making, but it is not required to strictly 

adhere to its earlier determinations, especially when provided new contradictory data.32 

                Although the customary and traditional use determination here is a close 

call, it is possible for different boards to come to different conclusions, as demonstrated 

by the Board's 1999 and 2003 findings.            These differing conclusions only highlight the 

need for this regulation, which provides some guidance for the application of otherwise 

general terms and principles; without it, nearly every decision of the Board could seem 

arbitrary.  The Board focused on use patterns in the Chitina subdistrict when making its 

customary and traditional use determination and, contrary to AFWCF's contentions, it did 

not impermissibly focus on users.         Thus, its application of the regulation was proper. 

        C. 	    The Board Of Fisheries May Take Into Consideration The Per Capita 

                Consumption Of Wild Foods In The Users' Home Communities When 

                Applying 5 AAC 99.010(b)(8). 

                The superior court held that it was improper for the Board to consider the 

per capita consumption of wild foods in the home community of the user when making 

its customary and traditional use findings for the Chitina subdistrict.   It reasoned that this 

comparison would effectively reflect an impermissible urban/rural distinction that would 

serve   only   to   disqualify   use   by   urban   residents. It   held   that   this   information   was 

"immaterial to the reliance placed on the fish and game by the user" and thus could not 

be taken into account by the Board. 

                The State and Ahtna challenge this ruling in their cross-appeal.             The State 

claims that the community harvest data was relevant, reasonable, and not arbitrary, and 

        32      See Libertarian Party , 101 P.3d at 622;Alaskan Crude Corp. v. State, Dep't 

of Natural Res., Div. of Oil &   Gas, 261 P.3d 412, 419 (Alaska 2011) (holding that 

reasonable basis standard applies to agency's interpretation of its own regulation, which 

means "defer to the agency unless its interpretation is plainly erroneous and inconsistent 

with the regulation") (citations omitted). 

                                                  -18-	                                           6731

----------------------- Page 19-----------------------

did not otherwise violate substantive due process standards. It asserts that community per 

capita harvest information has probative value as part of a body of evidence presented to 

the Board regarding the extent and depth of reliance on fish and game resources   by 

Chitina fishers.      Thus, it argues that the data serves a logical purpose and the Board 

should be allowed to consider it on a case-by-case basis.                   The State also argues that 

community data was relevant and notes that separate statistical data on the harvest of wild 

foods only by Chitina fishery participants was not available. The State explained that this 

community data was considered along with supplemental information indicating that 

individual harvest levels in the Chitina fishery were higher than the community per capita 

average and, taken together, this information was not unduly prejudicial to urban users. 

                 The   State   contends   that,   because   the   question   of   whether   a   subsistence 

fishery will be created does not restrict admission to a resource user group and therefore 

does not implicate the equal access provisions of the Alaska Constitution, McDowell 's 

limitations on urban/rural distinctions do not apply.   The State  points out that the Board 

is   allowed    to  take   community       per   capita   harvest    information     into   account    when 

establishing non-subsistence areas so it is already established that this information is 

relevant to the subsistence inquiry.          The State also argues that, because the Board may 

consider the use of community-wide data on the cost of food and gas when awarding 

subsistence   permits,   it   is   similarly   reasonable   for   the   Board   to   consider   community 

harvest data when classifying use patterns in fisheries since both data sets indicate the 

ability   of   the   subsistence   user   to   obtain   alternate   food   sources   if   subsistence   use   is 

restricted.33     The     State  also   notes   that   the  information      challenged     here   was    not 

conclusive,   but   only   reflected   common   knowledge   that   urban   communities   are   less 

        33       See Manning, 161 P.3d at 1224. 

                                                    -19-                                                 6731 

----------------------- Page 20-----------------------

subsistence-dependent   than         rural   communities.     Finally,   the   State   adds   that   while 

AFWCF makes "much of the perceived flaws in the survey prepared by the Subsistence 

Division," the community per capita harvest data was not even collected as part of that 


                Ahtna emphasizes the importance of community-based data, noting that 

"[s]ubsistence uses include[] patterns of sharing, customary trade, barter and reliance that 

extend   beyond   just   the   individual   user   to   the   broader   community,   to   a   pattern   of 

consistently sharing with elders, widows, and neighbors in need."  Ahtna maintains that 

it is necessary to look at communal use patterns to see if they align with a subsistence 

way of life and customary and traditional uses.  Ahtna believes that AFWCF's objection 

to   Chitina's   personal   use   classification    arises   from   its  frustration  with   the   State's 

acknowledgment of non-subsistence use areas; since these fishers cannot fish near their 

homes, they protest when "a fishery established by urban residents . . . hundreds of miles 

distant is a personal use fishery rather than a subsistence fishery." 

                Additionally, the State and Ahtna maintain that board members have enough 

expertise to give this information the proper weight it deserves and it is not improper 

"absent a showing of undue reliance on it in the face of better available information." 

The State contends that the record shows no such improper reliance on this data by board 

members nor does it demonstrate a disqualification based on community residence.                       In 

the absence of a finding that board members even took per capita data into account when 

making their classification decision in 2003, the State argues that the superior court's 

opinion regarding this data is merely advisory, because it proscribes information that the 

State should not consider in the future.  The State argues that even if this data is improper, 

the "mere presence in the Board's administrative rule-making record of [misleading] 

data . . . cannot support invalidation of a Board regulation." 

                                                  -20-                                             6731

----------------------- Page 21-----------------------

                 AFWCF counters that per capita consumption information is irrelevant to 

the Board's decision because the lower numbers for urban areas "reflect usage by  all 

residents of those areas, including many who do not engage in any subsistence activity 

whatsoever."      AFWCF emphasizes that this information only leads to customary and 

traditional use determinations biased in favor of rural users; it points to the use of this data 

by   federal   regulators   as   an   example   of   how   such   data   leads   to   the   rural/non-rural 

distinctions that are central to the federal subsistence inquiry but prohibited under the 

Alaska Constitution.  Thus, it argues that federal consideration of this data shows that the 

State's use of it is suspect because state law prohibits making rural/non-rural distinctions. 

AFWCF avows that the community per capita harvest information is not relevant to the 

Board's customary and traditional use inquiry and can only mislead board members about 

the actual use patterns of urban residents. 

                 We agree with the superior court's conclusion that it would be improper for 

the   Board    to  rely   exclusively    on   community      per   capita   consumption      to  establish 

customary      and   traditional   uses,   but   the  categorical    exclusion    of  such   data   is  also 

unwarranted.  Although it would be improper for the Board to compare actual per capita 

use by Glennallen fishery users with community-wide average use in urban areas, per 

capita consumption data of a specific community is not necessarily problematic.                       This 

data is relevant to establish use patterns and it may be reasonable in some contexts if the 

Board   chose   to   consider   it.  If   this   information   were   used   to   determine   whether   an 

individual user is qualified as a subsistence user, the per capita consumption data would 

be   invalid   under  Manning.      Here,   however,   the   Board   is   looking   at   subsistence   use 

patterns, not individual use, and therefore looking at community data may be relevant, 

                                                   -21-                                              6731

----------------------- Page 22-----------------------

especially   when   ascertaining   whether   a   community   of   users   really   depends   on   this 

resource for their livelihood or can easily obtain other means of subsistence.34 

                 Additionally, there is no evidence to   suggest that this data was actually 

relied upon when the Board made its customary and traditional use finding for Chitina in 

2003.     Without      such    evidence,    it  is  simply    another    piece   of  information     in  the 

administrative   record   and   may   not   be   a   basis   for   overturning   the   regulation   or   the 

finding.35   No board member indicated that he relied on this information when making 

his decision; only one member even mentioned the data, and he indicated that it was not 

probative, and he went on to vote against changing the classification of Chitina. Without 

a showing that this information was used in an improper manner to influence the decision 

of the Board, a categorical exclusion is unwarranted. 


                 Because the regulation is valid on its face and as applied and there is no 

violation of the equal access provisions of our constitution, we AFFIRM the decision of 

the   superior   court   upholding   the   regulation.     We   REVERSE   the   ruling   that   it   was 

        34       When   enacting   the   most   recent   version   of   the   subsistence   statute,   the 

legislature stated its purposes and findings.             These findings indicated that "there are 

Alaskans . . . who have a . . . dependence upon the wild renewable resources produced 

by Alaska's land and water . . . ."           Ch. 1, § 1(a)(1), SSSLA 1992 (emphasis added). 

"[T]hese Alaskans share ideals of respect for nature, the emphasis of using resources 

wisely, and the value and dignity of a way of life in which they use Alaska's fish and 

gamefor a substantial portion of their sustenance              . . . ."  Ch. 1, § 1(a)(2), SSSLA 1992 

(emphasis      added).      The   subsistence     statutes   must    protect   these   uses   where    such 

dependence for sustenance is demonstrated. 

        35       We   agree   with   the   State   that   5   AAC   99.010   has   nothing   to   do   with 

distinguishing   between   users   and   their   ability   to   participate   in   a   fishery,   but   rather 

pertains to the classification of fisheries themselves. 

                                                    -22-                                              6731

----------------------- Page 23-----------------------

improper   for   the   Board   to   be   presented   with   information   regarding   the   per   capita 

consumption of wild foods. 

                                                   -23-                                           6731

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