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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Ellingson v. Lloyd (12/26/2014) sp-6977

Ellingson v. Lloyd (12/26/2014) sp-6977

         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, email  

                                                                                 

         corrections@akcourts.us.  



                  THE SUPREME COURT OF THE STATE OF ALASKA  



ANN ELLINGSON and JOANNE                            )
  

DORMAN, Co-Personal                                 )
      Supreme Court No. S-14884  

Representatives of the Estate of                    )
  

CHARLES HUGH DORMAN,                                )
      Superior Court No. 3AN-10-04586 CI  

Deceased,                                           )
  

                                                    )
      O P I N I O N  

                 Appellants,                        )
  

                                                    )
      No. 6977 – December 26, 2014  

         v.                                         )  

                                                    )  

DENBY LLOYD, Commissioner,                          )  

Alaska Department of Fish and Game;  )  

ALASKA DEPARTMENT OF FISH                           )  

AND GAME; CLIFF JUDKINS,                            )  

Chair, Alaska Board of Game;                        )  

ALASKA BOARD OF GAME,                               )  

                                                    )
  

                 Appellees.                         )
  

_______________________________ )
  



                 Appeal from the Superior Court of the State of Alaska, Third  

                                                               

                 Judicial District, Anchorage, Sen K. Tan, Judge.  



                 Appearances:  Thomas E. Meacham, Law Office of Thomas  

                                                                   

                 E. Meacham, Anchorage, for Appellant.  Dario Borghesan,  

                                     

                 Assistant  Attorney  General,  Anchorage,  and  Michael  C.  

                 Geraghty, Attorney General, Juneau, for Appellees.  



                 Before:  Fabe, Chief Justice, Winfree, Stowers, Maassen, and  

                                                                               

                 Bolger, Justices.  



                 STOWERS, Justice.  


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

I.       INTRODUCTION  



                                                                                                       1 

                  This appeal challenges the efforts of the Alaska Board of Game  to control, 

                                                                 



by regulation, the movement of bison that stray outside the boundaries of two game  



ranches  on  Kodiak  Island.    The  Board  has  statutory  authority  to  determine  when  a  



domestic animal becomes “feral,” and thus legally characterized as “game.”  Pursuant  



to  this  grant  of  authority,  however,  the  Board’s  regulatory  definition  of  a  “feral”  



domestic animal must be reasonable and consistent with its authorizing statute.  



                  The  Board  amended  the  first  regulation  at  issue  to  read:    “Under  this  



section, and in accordance with the definition of ‘game’ [provided in statute,] (which  



                                               

includes feral domestic animals) . . . musk oxen, bison, or reindeer that [are] lawfully  



                                                                                  

owned . . . that [are] not confined or [are] not under positive control [are] feral unless the  

                                                                                         2  The Board amended  

animal is a free-ranging animal on a state or federal grazing lease.” 



                                                                                                    3 

a second regulation to authorize the Alaska Department of Fish and Game  to announce  

                                             

a public hunt of bison in Unit 8 — which includes Kodiak — by emergency order.4  

                                                                                             



These      amendments          effectively      confiscated       lawfully      owned       domestic       animals,  



unreasonably transforming them from “domestic” to “game” solely by reference to a  



property boundary line.  



         1        We refer to the “Board” when we discuss the Board’s authority and actions;   



we refer to the “State” when discussing the State as the party in this case.   



         2        5  Alaska  Administrative  Code  (AAC)  92.029(d)(2)  (2007)  (emphasis  



added).  



         3        We  refer  to  the  Department  of  Fish  and  Game  as  the  “Department”  

                                                                                              

throughout this opinion.  We refer to all other State departments by their full name.  



         4        5 AAC 85.010(a)(1) (2007).  



                                                         -2-                                                   6977
  


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

                    We therefore reverse the superior court’s grant of summary judgment in  



                                 

favor of the State and hold the contested regulations invalid.  We also vacate the court’s  



award of attorney’s fees to the State.  



II.       FACTS AND PROCEEDINGS  



          A.        Facts  



                                                                                                               

                    Charles Dorman was one of two bison ranchers on Kodiak Island.   He  



                       

possessed two grazing leases from the State of Alaska issued under the authority of  



                             5 

AS 38.05.070-.105;  his unfenced land totaled approximately 45,100 acres.  Dorman ran  



approximately 200-225 bison on his Department of Natural Resources leases, which  



                                                                                                         

stretched across remote areas in the vicinity of Saltery Cove. Dorman’s bulls, cows, and  



                                                                       

calves ranged in worth from $800-$4,000 each. He purchased his original 30 bison from  



a commercial domestic livestock owner in Homer and subsequently bred that stock.  



                                                                                                   

                    The other bison rancher on Kodiak ran his bison in the area of Narrow  



                                                      

Cape.  Due to distance and terrain the two herds did not intermingle.  Bison are not  



                                                                          

indigenous to Kodiak, but the Department of Fish and Game strongly supported the use  



of bison as an alternative to cattle because bison can better resist bear attacks.  Both  



                                                                                                      

ranchers raised bison for slaughter and for commercial private hunts.  The two ranchers  



did not mark, tag, or brand their bison so as to preserve the quality of the hunt.  



                    Portions of Dorman’s leases covered tidal flats.  The tidal flats’ soft earth  



                                                                                                   

could not physically support the installation and maintenance of a fence to confine the  



bison on Dorman’s grazing leases, and Dorman’s leases did not require fencing.  Fencing  



                                                                                                    

also  risked  impeding  the  movement  of  indigenous  Kodiak  bears  and  other  wildlife.  



                                                                                     

Consequently, during certain times of the year at low tide, a herd of 50-150 of Dorman’s  



          5         These  statutes  authorize  the  Department  of  Natural  Resources  to  lease  



                                                                                        

public land other than for the extraction of natural resources under the Alaska Land Act.  

See also AS 38.05.005.  



                                                             -3-                                                           6977  


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

                                                                                         

bison strayed roughly six miles off his leased land into the Wild Creek/Hidden Basin  



                                                                                                                                  6  

                                                                                                                                     Dorman  

area of state land, where the terrain prevented them from wandering further. 



asserted the wayward bison eventually returned on their own or, within a few weeks,  

                                                                                                   



someone alerted him of the situation and he took steps to herd the bison back onto his  

                                      



lease.  The State alleged that Dorman’s bison strayed and remained off lease for as many  

                                                                   



as five years at a time.  



                       At a meeting in March 2007, the Board of Game considered a regulatory  



                                                    

proposal seeking to amend the then-existing regulation to establish hunts of “feral” bison  



on Kodiak.  The proposal aimed to limit the expansion of “feral” bison herds throughout  



                                                               

the  area  by  allowing  the  public  to  hunt  them.    The  Board  heard  testimony  that  the  



proposal would only affect Dorman and the other rancher.  Dorman submitted written  



comments to the Board.  Department biologist Larry Van Daele explained that, while the  



                                                                                        

amendments changed the definition of “feral[,] . . . we know who [these bison] belong  



                                                                                                                  

to.”    Van  Daele  informed  the  Board  that  Dorman’s  bison  were  getting  “farther  and  



farther away [from his lease]” such that “if they’re not contained soon, they probably  



                                                                                                                                 

never will be”; Van Daele explained that the amendments aimed to “take care of this  



feral animal in the most efficient [way] possible.”  Van Daele stressed that there was  



                                                                                                     

“quite a bit of destruction or alteration of the habitat” in the Hidden Basin wetlands  



where Dorman’s bison wintered, but Van Daele also stated that “Kodiak tends to heal  



                                                                                                                      

itself a lot quicker than the tundra does, just the nature of the habitat down there.”  Van  



                                                           

Daele could not “say honestly that there [were] any detrimental impacts [to deer or bears]  



           6           In his comments to the Board at its 2007 meeting that approved the at-issue           



amendments, Department biologist Larry Van Daele estimated that Dorman’s trespassing  

bison numbered roughly 100-150 at any given time.  A United States Department of the  

                                                                                                                                           

Interior aerial survey conducted in November 2009 estimated that the off-lease herd was  

                         

roughly 50 bison at that time.  



                                                                       -4-                                                                 6977
  


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

                                        

right now,” but there was concern that Dorman’s bison would wander into the Kodiak  



Wildlife Refuge nearby or infect deer with a communicable disease in the future.  



                    The Chairman of the Board complained:  



                                                                               

                    [I]t  bothers  the  heck  out  of  me  that  [the  Department  of  

                    Natural Resources] hasn’t stepped up to the plate and taken  

                                                                                 

                    on their responsibility.  They’re the ones that [are] managing  

                    this lease, and they’re the ones that ought to be taking care of  

                    the animals.  It shouldn’t be shoved on [the] Department of  

                                                                     

                    Fish   and   Game   to   deal   with   this,   budgetwise   or   any  

                    otherwise.    It’s  [the  Department  of  Natural  Resources’]  

                    problem.  



                               

The Chairman also noted that, in his experience with cattle leases on Bureau of Land  



                      

Management property in the state, “when a herd of 10 bulls [went] . . . 10 miles down  



the  road”  the  Board  stayed  completely  out  of  it  because  the  bulls  were  not  “wild  



animal[s].”  



                    An attorney from the Department of Law discussed an earlier amendment  



                                                                 

to 5 AAC 92.029(d), which he stated took effect in response to a situation in the Delta  



                  

area where domestic bison intermingled with a wild bison herd.  His recollection was that  



                                                                       

the Board decided to amend 5 AAC 92.029(d) to “put the burden . . . on the domestic  



                                

rancher  to  establish  ownership”  of  the  bison  and  concluded,  “[W]e’re  going  to  say  



                    

they’re feral as soon as they’re off your property, out of your control.  We’ll give you a  



chance, if you’re basically in hot pursuit, to recover them.”  



                                                                                                    

                    After lengthy deliberations, the Board voted in favor of two amendments  



                                                                   

to  the  game  regulation  found  in  5  AAC  92.029(d)(2).    Under  prior  versions  of  



                                                                  

5 AAC 92.029(d)(2) dating back to 1995, a bison not confined or under its owner’s  



                               

positive control was deemed feral and subject to the jurisdiction of the Board “unless the  



                                                              -5-                                                        6977
  


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

                                                                                                      7  

animal is a free-ranging animal under a state or federal grazing lease.”   With the 2007  



amendments, a bison was deemed feral “unless the animal is a free-ranging animal on  



                                              8  

a state or federal grazing lease.”   This word change from “under” to “on” made a free- 



                                                          

ranging bison’s physical presence on a federal or state grazing lease determinative of its  



                                                                                                         

classification and ownership status (domestic and privately owned if on lease, but if off  



                                                                                                       9  

lease  presumed  “feral,”  and  thus  game  and  property  of  the  State).     This  “feral”  



presumption  could  be  overcome  if  a  demonstrated  owner  pursued  and  captured  the  



                                                                                           10  

                                                                                               An owner could also  

animal within 48 hours after the animal escaped confinement. 



pursue and capture the animal more than 48 hours after it escaped confinement if the  

owner obtained a permit from the Department.11  



                   The Board also amended 5 AAC 92.029(d)(2)(D) to reflect the reality that  



                                                                                                        

the  Kodiak  bison  ranchers  did  not  mark  or  brand  their  animals.                                Prior  to  these  



                                                                                        

amendments, ownership of an animal could be demonstrated only “by means of a clearly  



          7        5 AAC 92.029(d)(2) (1995), as amended by  5 AAC 92.029(d)(2) Reg. 138  



(1996), as amended by 5 AAC 92.029(d)(2) Reg. 146 (1998) (emphasis added).  



          8        5 AAC 92.029(d)(2) (2007) (emphasis added).  



          9        5 AAC 92.029(d)(2)(C).  All wildlife in Alaska, including game, is the  



property of the State and held in trust for the people.  See Alaska Const. art. VIII, § 3  

(“Whenever occurring in their natural state, fish, wildlife, and waters are reserved to the  

people for common use.”); Owsichek v. State, Guide Licensing & Control Bd., 763 P.2d  

488, 495 (Alaska 1988) (“Thus, common law principles incorporated in the common use  

                                                                                                       

clause impose upon the state a trust duty to manage the fish, wildlife and water resources  

of the state for the benefit of all the people.”).  



          10  

                                                                                       

                   5  AAC  92.029(d)(2)(A).    We  observe  that  Dorman’s  bison  were  not  

                                                                                                                

actually confined on his grazing lease because he was not required to fence his leased  

                                                                                  

land, and because of the impracticability of fencing the boundaries of the lease in any  

event.  



          11       5 AAC 92.209(d)(2)(B).  



                                                             -6-                                                      6977
  


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

visible permanent brand, ear tag, or owner’s mark on the body of the animal.”                                              12   The  



amendment added the following to the above sentence: “except that in [Kodiak Island]       



for  bison,  ownership  may  be  demonstrated  by  a  sworn   statement,  under  penalty  of  

                                                                                                  13   Van Daele explained  

perjury, if all bison in the area in question are privately owned.”                                    



this amendment aimed to “give[] those land owners the same . . . responsibilities that  

                                                                       



they would have if the animals were marked.  It gives them 48 hours to bring the animals  

                                                         



back, and longer if they work with the Department to get a permit to bring them back.”  

                                                       



                     Finally, the Board amended 5 AAC 85.010(a)(1), which authorized the  

                                                                      



Department to announce a public hunt of bison in Kodiak by emergency order.  The  

                                         



Department assured the two ranchers that a two-year grace period would be in effect,  



                                             

until July 1, 2009, to allow the ranchers to retrieve their bison.  One Board member  



                                                                         

described the amendments as a “wake-up call” to Dorman, while Van Daele deemed the  



hunt a “surgical strike” that dealt with the problem in the most efficient way possible.  



                                                                                                         

                     The Department’s Division of Wildlife Conservation sent letters in May  



2007 to Dorman and the second rancher informing them of the regulatory changes and  



                                                                                                         

explaining how to retrieve any off-lease bison. The letters stated that during the two-year  



                                                                              

grace  period,  the  ranchers  or  their  agents  could  capture  or  shoot  bison  off  lease  by  



                                                                                        

obtaining a permit from the Department.  In June 2007 Dorman, through his attorney,  



                                         

requested clarification of the retrieval permit application process.  One memorandum  



                                  

from the Department to Dorman explained, “[T]he Board’s longstanding policy has been  



to take preventative measures when introduced species like bison are released into the  



                                                 

wild, or, as in your . . . case,  simply allowed to roam at large .” (Emphasis added.)  



          12         See     5    AAC        92.029(d)(2)(D)             Reg.      146      (1998),        as    amended          by  



5 AAC 92.029(d)(2)(D) (2007).  



          13         5 AAC 92.029(d)(2)(D).  



                                                                 -7­                                                              6977  


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

                      On July 22, 2009, Dorman simultaneously filed two notices of appeal —  



one with the Board and one with the Department — challenging the Board’s authority       



                                                                     

to open a sport hunt for “feral” bison that he lawfully owned.  Both agencies responded  



in August 2009 explaining that Dorman was attempting to appeal Board regulations that             



                                                                                                            

could not be appealed through an administrative appeal process.  On January 11, 2010,  



Dorman  received  a  written   statement  from  the  Department  informing  him  that  a  



registration hunt for feral bison was “rapidly approaching” and would be authorized for  



                                                            

the  upcoming  winter  “if  the  bison  remain  in  the  Hidden  Basin  area  and  there  is  no  



attempt to obtain a permit and return them to the lease.”  



           B.         Proceedings  



                                                       

                      Dorman  filed  suit  in  superior  court  in  January  2010  challenging  the  



amendments  to  5  AAC  92.029(d)(2)  and  5  AAC  85.010(a)(1)  on  a  variety  of  



constitutional and statutory grounds.  Dorman sought declaratory and injunctive relief  



                                                                            

as well as damages.  The State filed a motion for summary judgment seeking dismissal  



of  Dorman’s  claims;  Dorman  filed  a  motion  for  summary  judgment  seeking  only  



declaratory relief.  



                      In July 2011, the superior court ruled on the cross-motions for summary  



judgment in favor of the State on all but Dorman’s fifth cause of action, which alleged  



                                                                                                                 

the Department had not complied with the procedural requirements of the Administrative  



Procedure Act, AS 44.62.010.  As relevant here, the order granting the State’s motion  



for summary judgment determined as a matter of law that the amendments to 5 AAC  



92.029(d)(2)  did  not  contravene  Alaska’s  statutes,  existing  case  law,  or  dictionary  



definitions of “feral” or “domestic.”   Dorman was granted leave to file an amended  



complaint,  and  the  superior  court  ultimately  granted  the  State’s  second  motion  for  



                                                                                               

summary judgment on Dorman’s remaining fifth cause of action, and its third motion for  



                                                                                                                      

summary  judgment  on  Dorman’s  claims  in  his  amended  complaint,  while  denying  



                                                                     -8-                                                              6977
  


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

Dorman’s second cross-motion for summary judgment on his remaining fifth cause of  



                       

action.  Final judgment was entered in August 2012.  The superior court granted the  



                              

State’s motion for Alaska Civil Rule 82(b)(2) attorney’s fees in the amount of $8,757.17.  

                     Dorman timely filed this appeal.14  



III.       STANDARD OF REVIEW  



                                                                                            

                     We review a grant of summary judgment de novo, drawing all reasonable  



                                                                     15  

                                                                                                                           

inferences in favor of the nonmoving party.                              “Summary judgment is proper if there is  



                                                                                                          

no genuine issue of material fact in dispute and the moving party is entitled to judgment  

as a matter of law.”16  



           14        In the present appeal Dorman argues that the superior court erred when it   



held that:  (1) Dorman did not comply with the regulation as drafted; (2) the Board had  

legal      authority        to     implement          the     amendments             to    5    AAC         92.029(d)(2)           and  

5 AAC 85.010(a)(1); (3) the Board lawfully imposed a confinement requirement (as                                

Kodiak   is   not   within   a    designated   controlled   livestock   district   as   specified   in  

AS 03.35.010-.070); (4) the Board did not violate Dorman’s rights to administrative   

appeal and adjudication; (5) the amendments did not violate Dorman’s rights to equal  

protection  under  article  I,  section  1  of  the  Alaska  Constitution,  or  the  Fourteenth  

Amendment  of  the  United  States  Constitution;  (6)  the  amendments  did  not  violate  

                      

Dorman’s rights to due process and fair and just treatment under article I, section 7 of the  

                                                                                            

Alaska Constitution, or due process under the Fourteenth Amendment to the United  

States Constitution; (7) the amendments did not constitute a taking under article I, section  

                                                                

18 of the Alaska Constitution, or the Fifth Amendment to the United States Constitution.  

                                                          



                     Our decision today addresses only the second issue Dorman raises, whether  

the Board’s exercise of authority in amending the regulations was reasonable and not  

arbitrary.  



           15         West v. State, Bd. of Game, 248 P.3d 689, 694 (Alaska 2010).  



           16  

                                                                                            

                     Id . (citing Parson v. State, Dep’t of Revenue, Alaska Hous. Fin. Corp. , 189  

P.3d 1032, 1036 (Alaska 2008)).  



                                                                  -9-                                                            6977
  


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

                                                                                             

                   Regulations are presumed valid, and the burden of proving otherwise is on  



                                17  

the challenging party.              We review an agency’s regulation to determine  



                   whether it is “consistent with and reasonably necessary to  

                   implement the statutes authorizing [its] adoption.”  Toward  

                                      

                   this end we consider:  (1) whether [the agency] exceeded its  

                                  

                   statutory        authority        in    promulgating           the     regulation;  

                                           

                   (2) whether the regulation is reasonable and not arbitrary; and  

                   (3)  whether  the  regulation  conflicts  with  other  statutes  or  

                                                        [18] 

                   constitutional provisions.  



Reviewing whether a regulation is reasonable and not arbitrary “consists primarily of  



                                                      

ensuring that the agency has taken a hard look at the salient problems and has genuinely  

engaged in reasoned decision making.”19  



                                                                                       

                   The interpretation of a statute is a question of law to which we apply our  

independent judgment.20  We interpret Alaska law “according to reason, practicality, and  



                                                                               

common sense, taking into account the plain meaning and purpose of the law as well as  

the intent of the drafters.”21  



          17       Id.  (citing Lakosh v. Alaska Dep’t of Envtl. Conservation , 49 P.3d 1111,  



1114 (Alaska 2002)).  



          18        Wilber v. State, Commercial Fisheries Entry Comm’n, 187 P.3d 460, 464­ 



65 (Alaska 2008) (quoting  Grunert v. State, 109 P.3d 924, 929 (Alaska 2005)) (first  

      

alteration in original).  



          19       Interior Alaska Airboat Ass’n, Inc. v. State, Bd. of Game , 18 P.3d 686, 690  

                                                                                                      

(Alaska 2001) (citing Tongass Sport Fishing Ass’n v. State, 866 P.2d 1314, 1319 (Alaska  

             

1994); Gilbert v. State, Dep’t of Fish & Game, Bd. of Fisheries, 803 P.2d 391, 398  

                                                          

(Alaska 1990)).  



          20        West, 248 P.3d at 694 (citing Parson, 189 P.3d at 1036).  



          21       Native Vill. of Elim v. State , 990 P.2d 1, 5 (Alaska 1999) (citing Alaska  



Wildlife Alliance v. Rue, 948 P.2d 976, 979 (Alaska 1997)).  



                                                            -10-                                                      6977
  


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

IV.       DISCUSSION  



                     The Board of Game has authority pursuant to AS 16.05.255 to:  



                     adopt regulations it considers advisable in accordance with
         

                    AS 44.62 (Administrative Procedure Act) for[:]
   

                     . . . .
  



                     (2)  establishing open and closed seasons and areas for the   

                    taking of game;  



                     (3)  establishing  the  means  and  methods  employed  in  the  

                    pursuit,  capture,            [and]  taking  .  .  .  of  game,  including  

                                                                                      

                    regulations,   consistent   with   resource   conservation   and  

                     development goals . . .[; and]  

                     . . . .  



                     (7) watershed and habitat improvement, and management,  

                     conservation,  protection,  use,  disposal,  propagation,  and  

                     stocking of game.  



In   recognition   of   the   Board’s   authority   to   enhance   resource   conservation   and  

                                                                                         



development and to promote watershed and habitat improvement, AS 16.05.940(19)  



provides that the Board may also regulate previously domestic animals introduced into  

                                             



the wild that have become feral; the statute defines game as “any species of bird, reptile,  

                                                  



and mammal, including a feral domestic animal, found or introduced in the state, except  

                                                                                         



domestic birds and mammals.”   The question before us, then, is whether the Board’s  

                                                    



regulatory definition of “feral” in its amendment to 5 AAC 92.029(d)(2) is consistent  



with and reasonably necessary to implement the statutes authorizing its adoption.  We  

                                                                                                           



conclude that it is not.  



          A.         The Board’s Regulatory Definition Of “Feral” Is Arbitrary.  



                     In  deciding  whether  a  regulation  is  reasonable  and  not  arbitrary  we  

                                                                                                                 



                                                               -11-                                                          6977
  


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

                                             22  

scrutinize process,  not policy.                  An agency’s decision will be regarded as arbitrary  



                                                                  23  

                                                                      We do not “examine the content of the  

where it fails to consider an important factor.  



                                                     24  

regulation  [or]  judge  its  wisdom,”                   but  we  do  stress  that  the  regulation  must  be  



                                            25  

                                                                                                      

reasonably related to its goal.                 The agency must take a close look at the problems it  



                        26  

                                                                                                

seeks to address           and consider important policy factors, even if  “every possible factor  

may not have been debated.”27  



                                                                                        

                    We observe at the outset that the term “feral” found in AS 16.05.940(19)  

                                                                                    28 meaning “of a wild nature,  

can be traced to the common law concept ferae naturae,  



          22        Interior Alaska Airboat Ass’n, Inc. , 18 P.3d at 693.  



          23        Id. ; see also Southeast Alaska Conservation Council, Inc. v. State , 665 P.2d  



544, 548-49 (Alaska 1983), superceded on other grounds by statute as recognized in  

State v. Native Vill. of Nunapitchuk, 156 P.3d 389, 392 (Alaska 2007).  



          24        Kingery v. Chapple , 504 P.2d 831, 835 (Alaska 1972).  



          25        Meier  v.  State,  Bd.  of  Fisheries ,  739  P.2d  172,  174  (Alaska  1987)  



(examining regulation in order to determine whether it is reasonably related to its goal  

                                                                                  

of allocating the salmon harvest between driftnet and setnet fishermen).  



          26        Gilbert v. State, Dep’t of Fish & Game, Bd. of Fisheries, 803 P.2d 391, 398  

                                                                                   

(Alaska 1990) (reviewing the record to determine whether the agency took a close look  

                                                                                       

at  the  problems  affecting  Chignik  salmon  and  thus  engaged  in  reasoned  decision  

                                                                                                

making).  



          27        Id .; see also Interior Alaska Airboat Ass’n, Inc., 18 P.3d at 693-94 (holding  



                                                                 

that, where the challenger merely disputes the relative weight the agency accorded to  

important policy factors, we are not empowered to resolve that dispute).  



          28        McDowell v. State , 785 P.2d 1, 11 (Alaska 1989) (“This right which one  



                                                                                    

individual has in common with every other individual in the community to take and use  

        

fish and game, ferae naturae , is one that has existed from the remotest times.” (quoting  

                               

Lewis v. State , 161 S.W. 154, 155 (Ark. 1913)) (internal quotation marks omitted));  

                                                                              

 Warren Cnty. Combined Health Dist. v. Rittenhouse, 689 N.E.2d 1036, 1038 (Ohio App.  

                                                                                                           (continued...)  



                                                             -12-                                                       6977
  


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

                29  

 untamed.”     Ferae naturae is a term “used to designate animals not . . . regarded as  



                                                                         30                               31 

 reclaimed so as to become the subject of property”                         or human ownership.               “Feral” and  

                                                        



                                              32                     33 

 “ferae naturae ” appear in legal                and non-legal          dictionaries.  



          28(...continued)  



 1997) (“The law divides animals into two classes, domesticated animals, or domitae  

 naturae, and wild animals, or ferae naturae .”); BLACK ’S LAW DICTIONARY  102 (9th ed.  

 2009) (defining an animal ferae naturae  as “[a]ny animal not statutorily designated as  

 a domestic animal” and a feral animal as “ [a] domestic animal that has returned to a wild  

                                                            

 state”).  



          29        2 BOUVIER ’S LAW DICTIONARY 1207 (8th ed. rev. 3d 1914).  



          30        Id .  



          31        Earl v. Van Alstine , 8 Barb. 630, 631 (N.Y. Gen. Term. 1850)  (“[The]  



 classification of animals  by the common law into animals ferae naturae  and domitae  

 naturae has reference mainly if  not  exclusively, to the rights of property which may be  

 acquired in them; those of the latter class being the subjects of absolute a   nd permanent  

 ownership, while in regard to   the former only a qualified property can exist, and the  

 distinction  is based upon  the extent  to which they can be domesticated or brought under  

 the control and dominion of man.”).  



          32  

                                                                          

                    See BLACK ’S LAW DICTIONARY  102, 696 (9th ed. 2009) (defining feral and  

ferae  naturae ); B 

                           ALLENTINE ’S  LAW  DICTIONARY   465  (3d  ed.   1969)  (defining ferae  

 naturae); 2 BOUVIER ’S  LAW  DICTIONARY 1207 (8th ed. rev. 3d 1914) (defining ferae  

 naturae).  



          33        See THE AMERICAN  HERITAGE DICTIONARY OF THE ENGLISH  LANGUAGE  



                             

 650 (5th ed. 2011) (defining feral); THE NEW SHORTER  OXFORD ENGLISH DICTIONARY  



                                                                                       

 934 (1993) (defining feral and ferae naturae); WEBSTER ’S II NEW RIVERSIDE UNIVERSITY  



                                                             

 DICTIONARY 472 (1988) (defining feral); WEBSTER ’S NEW WORLD DICTIONARY OF THE  



                   

 AMERICAN LANGUAGE  515 (2d ed. 1976) (defining feral and ferae naturae); WEBSTER ’S  

 THIRD  NEW  INTERNATIONAL  DICTIONARY  OF  THE  ENGLISH  LANGUAGE  838  (1966)  

 (defining  feral  and  ferae  naturae);  cf.  WEBSTER ’S  AMERICAN   DICTIONARY  OF  THE  

 ENGLISH LANGUAGE 81 (1st ed. 1828) (defining “ferine” as “wild; untamed; savage”).  



                                                            - 13-                                                      6977
  


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

                    The Board’s stated goal at its March  2007 meeting, as summarized by  

                                                                             



Department  biologist  Larry  Van  Daele,  was  to  “change  the  definition  of  feral”  by  

                                                                                                                 



regulation, even though Van Daele admitted “we know who [these bison] belong to.”  

We find this premise troubling, as  any discussion of dictionary, or even scientific,34  



definitions of the statutory term “feral” at the Board meeting would have revealed the  

                                                               



incongruity of defining “feral” to apply to unmarked bison in Kodiak where “it [was]  

                                                                



common knowledge who they belong[ed] to.”  That is, if the bison “belong[ed] to”  



                                                                                                            

Dorman  they  could  not,  by  definition,  be  feral  under  the  majority  of  linguistic  or  



scientific explanations that we have uncovered.  



                                                                                                                  

                    The Board also failed to consider the Department’s prior efforts to define  



the statutory term “feral.”  The Department had previously sought the Attorney General’s  



                                                                                    35  

legal advice on how to define the statutory term “feral.”     Most revealing is a 1987  



          34       See THE ENCYCLOPEDIA OF APPLIED ANIMAL BEHAVIOR &  WELFARE 263  



(Daniel S. Mills et al. eds., 2010) (discussing a “feral” animal as one who “revert[s] to  

                                                                                                      

a wild or semi-wild state, with little or no dependence on humans”); Edward O. Price,  

                                                               

Behavioral development in animals undergoing  domestication , 65 A 

                                                                                                       PPLIED  ANIMAL  

BEHAVIOUR SCIENCE 245, 262 (1999) (“[T]he  process of feralization has meant different  

               

things to different people.  Some [scholars] . . . suggest that in addition to their free- 

                                                                                                

ranging status, feral animals must be unowned, not intentionally cared for by humans,  

       

and  not  dependent  on  humans  for  breeding  .  .  .  .    Those  with  a  more  evolutionary  

                                                                                                               

viewpoint describe feral animals as undergoing the domestication process in reverse . . . .  

If one accepts the thesis that domestication involves genetic change . . . the process of  

feralization, like domestication, is seldom achieved in a single generation.” (emphasis  

added) (citations omitted)).  



          35       See STATE OF ALASKA ,  DEP ’T OF LAW ,  INFORMAL OP .  ATT ’Y  GEN ., 1987  



WL 121153 (July 30, 1987) (interpreting the term “feral” found in AS 16.05.940); see  

                                                                                                   

also STATE OF ALASKA ,  DEP ’T OF LAW ,  INFORMAL OP .  ATT ’Y  GEN ., 1987 WL 121161  

(Aug. 24, 1987) (determining the legal status of a herd of allegedly feral bison on Popof  

                                                                                                         

Island and delineating procedures for vesting title thereof).  



                                                            -14-                                                       6977
  


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

Informal Opinion of the Attorney General on the status of a bison herd on Popof Island.36  

                                      



That Opinion concluded that “a bison . . . ‘lawfully owned’ [by any private person or  

                                                                                                           



group] is not subject to your department’s management jurisdiction; but if the animal  



                                                                              37  

                                                                                    The  Opinion  explained  that  the  

becomes  feral,  it  is  subject  to  state  jurisdiction.”                                                              



inquiry into whether a bison had become feral turned on the specific facts of the case.  

                                  



On Popof Island,  



                                                                         

                     (1) the bison [had] been roaming free about the island [for at  

                                                                    

                     least 25 years]; (2) they [were] not and [had] not been fenced,  

                     corralled,   handled,   or   otherwise   brought   under   man’s  

                     dominion; (3) they [had] not been grazing under a grazing  

                                                                   

                     lease;   (4)   it   [was]   unlikely   that   any   of   the   originally  

                               

                    transplanted  bison  [were]  still  alive  —  the  herd  probably  

                     [was] composed only of offspring of the original transplanted  

                                                                             

                    bison that [had] been born and [had] lived in a wild state;  

                     [and] (5) there [was] no evidence of a valid chain of title to  

                                             

                                                                           [38] 

                    the bison as privately owned stock.  



                                                        

It is not so much that none of these possible policy considerations applies to Dorman’s  



bison — it is that none appears to have even been considered at the Board meeting.  



                                                                                                     

Were these factors considered, the first factor would reveal that, at most, Dorman’s bison  



                                                                                   39  

                                                                                       And according to Dorman, he  

had wandered off lease for five years, not twenty-five. 



                                                                                                                                   40  

        

had corralled his bison back on lease and continued to exercise authority over them. 



          36         INFORMAL OP .  ATT ’Y  GEN ., 1987 WL 121161.
  



          37        Id. at *2.
  



          38        Id .
  



          39         Dorman vehemently denied that his bison remained off lease for more than                     



two weeks at a time.  



          40        Van  Daele  admitted  that  Dorman  did  corral  his  herd,  just  not  rapidly  

                                                              

                                                                                                                (continued...)  



                                                               -15-                                                          6977
  


----------------------- Page 16-----------------------

Further, the animals had been grazing under a lease, even if they also strayed off lease  

                                                                              



            41  

to graze.        Dorman also provided a written affidavit to the superior court attesting to his  



                                                                            

purchase of the original 30 bison from a commercial domestic livestock owner in Homer  



and his subsequent breeding of that stock; none had been born in the wild or lived in a  



                                                                                                             

wild state.  Finally, Dorman consistently defended and provided evidence of his title to  



his privately owned bison, and no one disputed his ownership.  



                   We  highlight  these  factors  to  underscore  that,  instead  of  considering  



objectively  ascertainable,  fact-driven  standards  for  defining  when  a  domestic  bison  



                                 

becomes feral, when the Board drafted the amendments to 5 AAC 92.029(d)(2) and  



                                                   

5  AAC  85.010(a)(1),  it  defined  “feral”  solely  with  reference  to  a  grazing  lease’s  



                                                                   

boundary line:  the instant a lawfully owned, domestic bison crosses over the boundary  



                                      

line of the grazing lease, it is automatically classified as feral, owned by the State, and  



                                                                                    

subject to an emergency hunt.  At oral argument, counsel for the State conceded that the  



regulation  operates  to  transform  from  privately  owned  domestic  to  instantaneously  



                  

“feral” any one of the free-ranging species listed in the statute the moment the animal  



                                                                  

steps foot off its owner’s grazing lease.   If the animal steps back onto the lease, the  



animal becomes a lawfully owned domestic mammal once again.  



                   In order for a regulation to pass muster under a reasonable-and-not-arbitrary  



                                                                    

standard  of  review,  the  agency  must  take  a  close  look  at  the  problems  it  seeks  to  



          40(...continued)  



enough, and the animals returned to the Wild Creek/Hidden Basin area of state land as  

chronic strays in winter.  



          41       A  memo  from  the  Department  to  Dorman  admitted  as  much:    “[T]he  



Board’s longstanding policy has been to take preventative measures when introduced  

species like bison are released into the wild, or, as in your . . . case, simply allowed to  

                            

roam at large.” (Emphasis added.)  



                                                            -16-                                                       6977
  


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

           42  

                                                                         

address        and consider important policy factors, even if  “every possible factor may not  



                                43  

have  been  debated.”                 Here,  the  Board  created  a  definition  of  “feral”  solely  with  



                                                                                                           

reference to a property boundary line and solely to target an individual whose livestock  



                                                                            

continuously strayed off lease.  We cannot say as a matter of law that this process was  



a reasonable one.  



                                                                                                 

          B.        The Regulation Conflicts With Other Statutes.  



                                                                                                 

                    Alaska Statute 16.05.940(19) defines game as “any species of . . . mammal,  



                                                                                         

including a feral domestic animal, . . . except domestic . . . mammals” and provides that  



                                            

“game may be classified by regulation.”  (Emphasis added.)  The statute indicates that  



                                                                                                  

the legislature anticipated that domestic animals would undergo a process of feralization,  



                                                            

and  bestowed  upon  the  Department  discretionary  authority  to  enact  regulations  



                                                                                                        

concerning these animals, provided that the Board properly classified them as game.  All  



the statute dictates to the Board is that “game” cannot, by regulation, include “domestic  



mammals.”  



                    But AS 16.05.940(10) defines “domestic mammals” to “include musk oxen,  



bison,  and  reindeer,  if  they  are  lawfully  owned.”    (Emphasis  added.)    Thus,  when  



                                                                  

enacting a regulation reasonably related to its goals of defining feral domestic animals,  



so as to protect and promote resource conservation, development, and watershed and  

                                44  the Board may not classify lawfully owned domestic mammals  

habitat improvement,                                        



as game.  This is precisely what the Board did in this case.  The Board’s failure to  



          42        See  Gilbert v. State, Dep’t of Fish & Game, Bd. of Fisheries                           , 803 P.2d 391,  



398 (Alaska 1990).  



          43        Id .; see also Interior Alaska Airboat Ass’n, Inc. v. State, Bd. of Game, 18  

                                                                                             

P.3d 686, 693-94 (Alaska 2001).  



          44        See AS 16.05.255.  



                                                              -17-                                                         6977
  


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

consider this statutory provision falls short of what is required under our standard, which  

                                                                                                    

examines whether the regulation conflicts with other statutes.45  



                                                                                            

                    This is not to say that a situation can never arise where a lawfully owned  



domestic mammal reverts to a feral state, nor do we intend to minimize the Board’s  



                                                                  

concern with “quite a bit of destruction or alteration of habitat” in the Hidden Basin  



                                                                                            

wetlands of Kodiak where Dorman’s bison wintered.  But the Board simply cannot, by  



                                                                                                   

regulation, transmute the legal status of a lawfully owned domestic animal from private  



property to game by the arbitrary and expedient determination that the animal becomes  



                                                                                

feral (and thus game) solely by crossing a boundary line.  Nor can the Board draft a  



                                                                                                         

regulation that defines “game” to include “domestic mammals,” such as lawfully owned  



bison that wander off their state grazing lease.  



          C.        We Vacate The Award Of Attorney’s Fees To The State.  



                                                       

                    Because we reverse the superior court’s grant of summary judgment to the  



State, we also vacate the court’s determination of the State’s prevailing party status and  



its  award  of  Rule  82(b)(2)  attorney’s  fees,  and  remand  for  reconsideration  of  the  



attorney’s fees issue.  



V.        CONCLUSION  



                                          

                    We  hold  that  5  AAC  92.029(d)(2)  is  invalid  as  a  matter  of  law.    We  



                                                             

likewise  hold  invalid  the  portions  of  5  AAC  85.010(a)(1)  that  authorize  a  hunt  by  



                                                                                                      

emergency  order,  the  hunting  season,  and  the  bag  limit for  bison  in  Unit  8,  which  



includes Kodiak.  We REVERSE the superior court’s grant of summary judgment in  



                                                                             

favor  of  the  State,  VACATE  its  order  awarding  attorney’s  fees  to  the  State,  and  



REMAND the attorney’s fees issue to the superior court.  



          45  

                                                                     

                    See  Wilber v. State, Commercial Fisheries Entry Comm’n, 187 P.3d 460,  

464-65 (Alaska 2008) (citing Grunert v. State, 109 P.3d 924, 929 (Alaska 2005)).  



                                                            -18-                                                           6977  

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