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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Vanek v. State, Board of Fisheries (09/19/2008) sp-6308
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| STEPHEN VANEK, TEAGUE | ) |
| VANEK, DAVID MARTIN, and | ) |
| STEVE TVENSTRUP, in a | ) |
| representative capacity on behalf of | ) |
| a class and for all others similarly | ) |
| situated; TIM KEENER, KENNETH | ) |
| COLEMAN, DOUGLAS BLOSSOM, | ) |
| and MARK DUCKER, in a | ) |
| representative capacity on behalf of | ) |
| a class and for all others similarly | ) |
| situated, | ) |
| ) Supreme Court No. S- 12579 | |
| Appellants, | ) |
| ) Superior Court No. | |
| v. | ) 3AN-05-12647 CI |
| ) | |
| STATE OF ALASKA, BOARD OF | ) |
| FISHERIES, | ) O P I N I O N |
| ) | |
| Appellee. | ) No. 6308 - September 19, 2008 |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Sen K. Tan, Judge.
Appearances: Arthur S. Robinson, Robinson &
Associates, Soldotna, for Appellants. Steven
A. Daugherty, Assistant Attorney General,
Anchorage, and Talis J. Colberg, Attorney
General, Juneau, for Appellee.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, and Carpeneti, Justices.
CARPENETI, Justice.
I. INTRODUCTION
Commercial salmon fishers holding Cook Inlet entry
permits and shore fishery leases brought this class action
requesting a declaratory judgment that regulations promulgated by
the Alaska Board of Fisheries since 1996 have caused a taking or
damaging of their property interests without just compensation.
The superior court granted the states motion to dismiss the case.
The salmon fishers appeal the superior courts decision, arguing
that their entry permits and shore fishery leases are
constitutionally protected property and that the regulations at
issue effect a taking or damaging of their property rights
requiring just compensation. Because the entry permits are not
property interests for purposes of takings analysis under the
Federal or Alaska Constitutions, and because even if the permits
or leases are property, the property interests have not been
taken or damaged through the regulations, we affirm the superior
courts decision to dismiss the case.
II. FACTS AND PROCEEDINGS
The plaintiffs in this case are commercial salmon
fishers who have held Alaska Commercial Fishing Entry Commission
(CFEC) Cook Inlet drift gillnet permits or set gillnet permits.
They all harvest pacific salmon in Cook Inlet for sale into the
international seafood market. The defendant, State of Alaska
Board of Fisheries is the state agency authorized to promulgate
commercial fishing regulations for Cook Inlet under AS
16.05.251(a).
This case arises out of changes to the Upper Cook Inlet
Salmon Management Plan. That plan, put into place by the board
through 5 Alaska Administrative Code 21.363 in 1978, allocated
Upper Cook Inlet salmon among Upper Cook Inlet commercial gillnet
fishers and recreational in-river anglers in the Kenai, Kasilof,
and Susitna rivers. Under the plan, salmon stocks were managed
primarily for commercial users from July 1 to August 15 each
year. After August 15, salmon stocks moving to the Kenai
Peninsula drainage were managed for recreational uses, but salmon
stocks other than those spawning on the Kenai Peninsula were
still managed for commercial uses. As a result of the plan, the
set net salmon season in the Kasilof, Kenai, and East Foreland
sections of the Central District of Cook Inlet ran from June 25
to August 15 each year. From 1982 to 1996, the season for Upper
Cook Inlet commercial drift gillnet salmon fishing ran from June
25 to December 31 each year.
In 1996 the board promulgated 5 AAC 21.358, the
Northern District Salmon Management Plan, which closed the drift
gillnet fishing season on August 9 in order to allocate silver
salmon to in-river recreational fisheries in the Matanuska-
Susitna drainage areas. The regulation also restricted
commercial drift gillnet permit holders from operating gear in
certain areas of Cook Inlet during what otherwise would be
priority commercial fishing times.
In 1997 the board adopted 5 AAC 21.357, the Kenai River
Coho Salmon Conservation Management Plan, which directed the
Upper Subdistrict of Upper Cook Inlet to close following the
first regularly scheduled set gillnet fishing period on or after
August 10. That year, the period was closed before August 15 for
the first time since 1978. The board also adopted 5 AAC 21.310,
which changed the opening date for the set gillnet season in the
Kenai and East Forelands sections of the Central District from
June 25 to July 8 and changed the closing date for the set
gillnet season from August 15 to August 10.
In 1999, 2000, and 2002, the board adopted numerous
other regulations revising the Upper Cook Inlet Salmon Management
Plan. These regulations limited the harvest of salmon and
shortened the seasons for commercial drift gillnet fishing and
set gillnet fishing.
These various regulations had the cumulative impact of
reducing the amount of fish the drift gillnet and set gillnet
fishers were able to catch and thus reducing the value of the
commercial fishers entry permits and the set gillnet fishers
shore fishery leases.
The salmon fishers filed a complaint on October 25,
2005, alleging that the regulations constitute unlawful takings
or damage to [their] property interest in violation of the United
States and Alaska Constitutions. They sought a declaration that
these government actions are unconstitutional and unenforceable
without just compensation paid to the plaintiffs for a taking or
damage to their property.
On December 12, 2005, the state filed a motion to
dismiss pursuant to Alaska Rule of Civil Procedure 12(b)(6),
arguing that the salmon fishers complaint fails to state a claim
for which relief can be granted. On December 1, 2006, Superior
Court Judge Sen K. Tan entered an order granting the motion to
dismiss. Judge Tan entered final judgment dismissing the salmon
fishers claims on December 29, 2006.
The salmon fishers appeal.
III. STANDARD OF REVIEW
I. We review de novo an order dismissing a complaint on the
basis of Rule 12(b)(6) for failure to state a claim upon which
relief can be granted.1 Generally, motions to dismiss for
failure to state a claim are disfavored and should be rarely
granted.2 To survive a motion to dismiss, the complaint must
allege a set of facts consistent with and appropriate to some
cause of action.3 For purposes of reviewing an order on a motion
to dismiss, we deem all facts in the complaint true and provable.4
The complaint can be dismissed under Rule 12(b)(6) only where it
appears beyond doubt that the plaintiffs can prove no set of
facts in support of their claim that would entitle them to
relief.5
IV. DISCUSSION
A. The Request for a Declaratory Judgment Is Moot, but the
Public Interest Exception to the Mootness Doctrine Applies.
The state argues that the salmon fishers claims do not
present a current live controversy and are therefore moot because
the challenged regulations were extensively amended in 2005. The
salmon fishers respond that the controversy is not moot because
even the newer regulations so substantially restrict the
appellants activities under their permits and leases, in the same
manner as the former regulations, that the unconstitutional
taking and damaging of property is ongoing. The salmon fishers
also argue that even if the claims are moot, we should decide the
issues under the public interest exception to the mootness
doctrine.
We apply our independent judgment in determining
mootness because mootness is a question of law.6 We refrain from
deciding a question where the facts have rendered the legal
issues moot.7 A claim is moot if it has lost its character as a
present, live controversy,8 or if the plaintiffs would not be
entitled to relief even if they were to prevail.9 However, even
when a case is moot we may decide certain issues if they fall
within the public interest exception to the mootness doctrine.10
The exception consists of three factors: (1) whether the disputed
issues are capable of repetition, (2) whether the mootness
doctrine, if applied, may cause review of the issues to be
repeatedly circumvented, and (3) whether the issues presented are
so important to the public interest as to justify overriding the
mootness doctrine.11
We have addressed mootness claims in previous
challenges to board regulations. In Peninsula Marketing Assn v.
State,12 we held that even though a challenged regulation placing
a cap on the number of chum salmon to be taken in a fishery had
been amended to raise the cap, rendering questions regarding the
validity of the regulation moot, we would still consider whether
the statute delegating fishery management authority to the board
applied to intra-commercial fishery resource allocations.13 We
reasoned that the public interest exception applied because the
board could easily evade review of one of its regulations by
amending it annually, and the question presented was of
considerable public importance.14 Also, in Grunert v. State15 we
held that the validity of a challenged board regulation was moot
because the regulation was amended but chose to consider the
issue under the public interest exception to the mootness
doctrine because there would likely be a continued dispute
concerning the interpretation of the amended regulation.16
Here, as in Grunert, the challenged board regulations
have been amended, which likely makes the declaratory judgment
action concerning the prior regulations moot. However, as in
Grunert and Peninsula Marketing, an analysis of the public
interest factors reveals that it is appropriate in this case to
apply the exception to the mootness doctrine and address the
underlying takings issue. First, this case is capable of
repetition in the form of a new suit challenging the new
regulations because the salmon fishers allege that the amended
regulations restrict their fishing in the same way as the prior
regulations. Second, application of the mootness doctrine may
cause review of the issues to be repeatedly circumvented because
the board could easily evade review of the regulations by
amending them annually. Finally, the issues presented are so
important to the public interest as to justify overriding the
mootness doctrine17 because they involve constitutional takings
claims affecting one of this states most important industries:
commercial fishing. Thus, although the 2005 amendments to the
board regulations at issue may have mooted the salmon fishers
claims, we address the claims under the public interest exception
to the mootness doctrine.18
B. The Superior Court Correctly Concluded that the Board of
Fisheries Regulations Did Not Effect a Taking of CFEC Entry
Permits Requiring Just Compensation.
In its order granting the states motion to dismiss the
fishers complaint, the superior court held that the Plaintiffs do
not have a cognizable property interest in their entry permits
sufficient to support a takings claim. The fishers argue that
the CFEC permits are constitutionally protected property under
the takings clauses of the United States and Alaska Constitutions
requiring compensation when involuntarily divested. The state
responds that there are no cognizable property interests in CFEC
permits that could be taken or damaged by regulations of the
board.
Under the Fifth Amendment of the Federal Constitution
private property shall not be taken for public use, without just
compensation. The Alaska Constitution contains a broader
conception of compensable takings. According to article I,
section 18, [p]rivate property shall not be taken or damaged for
public use without just compensation. Article VIII, section 16
states, [n]o person shall be involuntarily divested of his right
to the use of waters, his interests in lands, or improvements
affecting either, except for a superior beneficial use or public
purpose and then only with just compensation and by operation of
law.
1. The superior court correctly concluded that the CFEC permits
are not compensable property under the takings clauses of the
Federal and Alaska Constitutions.
The fishers argue that their entry permits are property
for purposes of takings analysis. They contend that the board
has no regulatory power to suspend, modify, or revoke the
permits; that the permits confer exclusive fishing rights; that
the permits are valuable and transferable; that the permits can
be used as collateral for loans; and that even applicants for the
permits have protected property interests that entitle them to
due process protections. The state responds that the CFEC
permits provide permit holders nothing more than a use privilege
or license to fish, subject to all applicable regulations adopted
by the board of Fisheries.
a. The Limited Entry Act says that entry permits are not
property for purposes of the takings clauses.
a. Alaska Statute 16.43.150(e) provides that [a]n entry permit
constitutes a use privilege that may be modified or revoked by
the legislature without compensation. An August 6, 1979 Attorney
General Opinion explained that a limited entry [fishing] permit
has not acquired the status of a property right such that
otherwise constitutional legislative changes to the nature of a
limited entry permit would require the payment of compensation.19
After first enacting the Limited Entry Act in 1973,20 the Alaska
Senate re-examined the statute in 1990 and rejected the idea that
an entry permit represents a property right belonging to the
permit holder.21 Nevertheless, we have not yet definitively
stated whether the permits are property for purposes of takings
analysis.
The plain language of the Limited Entry Act supports
the superior courts conclusion that an entry permit is not
property but a mere use privilege that does not require
compensation when modified. The legislatures use privilege
language establishes that the permits are merely licenses to fish
that are subject to government regulation. The salmon fishers
argument focuses heavily on the second clause of AS 16.43.150(e):
may be modified or revoked by the legislature without
compensation. They argue that this language indicates that the
legislature, but not the board, can modify or revoke the permits
without paying just compensation. Under the salmon fishers
argument, board regulations affecting the value of the permits
require just compensation. The salmon fishers argument is
unconvincing for three reasons: (1) the first clause of AS
16.43.150(e) makes clear that an entry permit is a use privilege,
not a property right; (2) the fact that the provision explicitly
provides for modification or revocation by the legislature does
not mean that the board cannot also promulgate regulations
modifying the allowable use of entry permits; and (3) the
legislature has explicitly delegated the power to regulate
fishery resources to the board, so board regulations which affect
the value of entry permits, like direct actions by the
legislature, do not require just compensation.22
b. A conclusion that the limited entry permits are property for
purposes of takings analysis would violate other provisions of
the state constitution.
We addressed the constitutionality of the limited entry
system in State v. Ostrosky.23 We held in Ostrosky that the entry
restrictions and transferability provisions in the Limited Entry
Act comport with article VIII, section 3 (common use of natural
resources), article VIII, section 15 (no exclusive right of
fishery), and other provisions in the state constitution.24 The
entry restrictions prohibit operation of commercial fishing gear
without a permit, and the transferability provisions allow
limited transferring of a permit if the transferee can show
present ability to participate actively in the fishery.25 The
transferability provisions also provide for a right of
survivorship to the surviving spouse unless the possessor of the
permit manifests a contrary intent.26
Article VIII, section 3 of the Alaska Constitution
provides that [w]herever occurring in their natural state, fish,
wildlife, and waters are reserved to the people for common use.
And the first sentence of article VIII, section 15 bans exclusive
rights in fisheries:
No exclusive right or special privilege of
fishery shall be created or authorized in the
natural waters of the State.
The second sentence of article VIII, section 15, was added by
amendment in 1972 in order to authorize a limited entry system.27
It provides:
This section does not restrict the power of
the State to limit entry into any fishery for
purposes of resource conservation, to prevent
economic distress among fishermen and those
dependent on them for a livelihood and to
promote the efficient development of
aquaculture in the State.
In Ostrosky, we upheld the statutory limited entry system and
transferability provisions, concluding that they were permissible
under the newly added language of article VIII, section 15. But
we recognized that a tension existed between the new language
authorizing limited entry and the pre-existing language of the
common use and no exclusive right of fishery clauses. We
accepted as logical the fishers argument in Ostrosky that
whatever system of limited entry is imposed must be one which,
consistent with a feasible limited entry system, entails the
least possible impingement on the common use reservation and on
the no exclusive right of fishery clause.28
But granting property status to entry permits for the
purpose of a constitutional takings analysis would go beyond our
approval in Ostrosky of the statutory limited entry system. If
the CFEC permits were given the status of property for purposes
of a takings challenge based on changes in regulations, then the
waters would not truly be reserved to the people for common use,
as required by article VIII, section 3. Rather, a permit holder
would effectively own the right to fish to the exclusion of other
people in a manner that was not contemplated by the limited entry
amendment and which is not required by the purposes of limited
entry. Similarly, giving a CFEC permit property status for
purposes of a regulatory takings challenge would grant an
exclusive right of fishery for the permit holder in violation of
the first sentence of article VIII, section 15. Again, such a
status would go beyond that contemplated by the second sentence
of section 15 and is not required to accomplish the purposes of
limited entry. Providing for a system of entry permits which
allows the board discretion to promulgate and amend regulations
for resource conservation, prevent[ion] [of] economic distress,
and the efficient development of aquaculture on the other hand,
clearly falls within the contemplation of both sentences in
article VIII, section 15.
Because it would imply an exclusive right of access to
the fishery, which is not needed for the purposes of a limited
entry system, a conclusion that the permits are property under
takings analysis would violate the common use and no exclusive
right of fishery provisions of the state constitution. We
construe statutes if reasonably possible so as to avoid a
conclusion that they are unconstitutional.29 Thus, in order to
ensure that the Limited Entry Act does not violate article VIII,
sections 3 and 15 of the state constitution, we conclude that the
entry permits are not property for purposes of a takings
challenge.
The salmon fishers also argue that they should receive
just compensation because they have a private property interest
in state waters that has been involuntarily divested in
violation of article VIII, section 16 of the state constitution.30
This argument suffers from the same problem as their general
takings argument: While the salmon fishers have water rights,
they do not have the right to an exclusive fishery because
recognition of such a right would violate article VIII, sections
3 and 15. Thus, article VIII, section 16 does not grant the
salmon fishers an exclusive private property right in the states
waters.
c. Case law addressing the nature of CFEC permits and other
similar fishing licenses does not support the conclusion that the
permits are property for purposes of a takings challenge.
a. We have addressed the nature of CFEC permits in the context
of inheritance, child support, and entitlement to due process
protection. In Wik v. Wik, we held that entry permits are
ordinary personal property for inheritance purposes.31 However,
we were careful not to make a broader proclamation about the
nature of the entry permits. We stated, [t]he question is not
whether permits have all the inherent attributes of personal
property, but rather whether the legislature intended permits to
be treated as property for purposes of inheritance.32 In Anderson
v. Anderson, we held that the permits are subject to execution
for past due child support claims.33 In Miners Estate v.
Commercial Fisheries Entry Commission, we held that a qualified
applicant for an entry permit has a property interest entitled to
due process protection because of the statutes linking
entitlement to past license-holding, because the standards by
which applications are judged are specific and non-discretionary,
and because the statute regulates individuals pursuits of their
livelihoods.34 However, in Miners Estate we also approvingly
quoted a passage from Commercial Fisheries Entry Commission v.
Apokedak, which states that a gear license holder has a privilege
and a license.35 We have never held that CFEC permits grant a
property interest for purposes of a takings challenge.
Various federal cases have addressed takings claims
involving regulation of the fishing industry.36 Conti v. United
States involved the federal governments prohibition of sword
fishing using drift gillnet gear in the Atlantic Swordfish
Fishery under a statutory scheme that explicitly provided for
fishery regulation by the Secretary of Commerce.37 Conti, a
possessor of a swordfishing permit, brought a lawsuit alleging
that the regulation effected a taking of his permit requiring
just compensation.38 The Federal Circuit Court of Appeals held
that Contis swordfishing permit fell short of conferring a
cognizable property interest.39 The court explained, [t]he
Constitution neither creates nor defines the scope of property
interests compensable under the Fifth Amendment.40 Rather,
existing rules and understandings and background principles
derived from an independent source, such as state, federal, or
common law, define the dimensions of the requisite property
rights.41 The court reasoned that courts have held that no
property rights are created in permits and licenses.42 The court
also emphasized the fact that Conti did not have the right to
assign, sell, or otherwise transfer the permit and stated that
such rights are traditional hallmarks of property.43 Finally, the
court recognized that the permits did not confer exclusive
fishing privileges and that the government retained the right to
suspend, revoke, or modify the permit.44 Another similar federal
case, which was relied on by the superior court in its decision
below, is American Pelagic Fishing Co. v. United States.45 In
American Pelagic, the Federal Circuit held that a commercial
fishing vessel owner and permit holder did not suffer the taking
of a property interest legally cognizable under the Fifth
Amendment when previously issued permits were revoked through
special legislation and regulations.46 The court refused to find
a compensable property interest because the permits were not
transferable or assignable, they did not confer exclusive fishing
privileges, and they could be revoked, suspended, or modified by
the government.47 In American Pelagic, the court emphasized that
property rights only exist against the framework of existing laws
and regulations, and that there was no property right in this
case because the right to fish implicates the governments power
over conservation and management of fishery resources.48
Although we have treated limited entry permits as
property for other purposes such as inheritance and child
support, the federal cases are persuasive in their reasoning that
fishing permits do not confer property interests for the purposes
of takings claims. An examination of background principles of
state law reveals that the permits are not property but rather
use privileges49 or licenses subject to the police power of the
state. Further, limited entry permits came into existence only
as part of a framework of laws that allowed for regulation of the
Alaska fishery and authorized continuing amendment and adjustment
of the permit system.50 Alaska Statute 16.43.950 explicitly makes
entry permits subject to board regulation:
Nothing in this chapter limits the powers of
the Board of Fisheries, including the power
to determine legal types of gear and the
power to establish size limitations or other
uniform restrictions applying to a certain
type of gear. Holders of interim-use permits
or entry permits issued under this chapter
are subject to all regulations adopted by the
Board of Fisheries.
Also, AS 16.05.251(a)(2) allows the board to adopt regulations it
considers advisable for establishing open and closed seasons and
areas for the taking of fish. These statutory provisions show
that CFEC permits are fully subject to board regulation and thus
not entitled to protection as property under the takings clauses
of the state and federal constitutions.
American Pelagic and Conti examined three factors:
transferability, exclusivity, and the ability of the government
to revoke or modify the permits.51 An analysis of those three
factors in the present case provides further support for the
conclusion that CFEC permits are not property for the purpose of
takings analysis.
First, while the CFEC permits at issue have limited
transferability, unlike those in American Pelagic and Conti,
transfer of the permits is subject to approval by the CFEC.52
Permit holders may not lease their permits53 and permits cannot be
encumbered except to secure a purchase money loan under highly
regulated conditions.54 If a permit holder attempts to transfer a
permit in a manner inconsistent with state statute, the transfer
is void.55 Further, the pool of eligible transferees is limited.
The proposed transferee must demonstrate the present ability to
participate actively in the fishery and must show that the
transfer does not violate any state law or regulations.56 Only
natural persons may be permit holders.57 Certain permit holders
are completely prohibited from transferring their permits.58
Based on these factors, the limited transferability of the
permits does not reach the requisite level for consideration as
property.59
Second, as discussed above, a CFEC permit provides
exclusive rights only to the extent necessary to achieve the
purposes of limited entry. Imbuing permits with protection from
government takings is not necessary for those purposes and
therefore would violate article VIII, section 3, and article
VIII, section 15, of the state constitution.
Finally, the legislation creating the CFEC permit system
explicitly reserves the power for the legislature to revoke or
modify the permits60 and for the board to regulate fishing.61 In
delegating to the board the right to regulate fishing, the
legislature also delegated the power to allocate fish between
competing uses in a manner that can affect the value of CFEC
permits. In sum, analysis of the three factors discussed in
American Pelagic and Conti leads to the conclusion that a CFEC
permit is not a property interest requiring just compensation
when regulations affect its value.
The salmon fishers argue that because we held in Miners
Estate that applicants for entry permits have a property interest
for due process purposes,62 entry permits are property for
purposes of a takings claim. While we held in Miners Estate that
an applicant for a CFEC permit has a property interest entitled
to due process protection,63 it does not necessarily follow that a
CFEC permit is property that requires just compensation when its
value decreases due to valid state regulation. The United States
Supreme Court, in Lingle v. Chevron U.S.A. Inc., emphasized that
takings analysis is not the same as due process analysis.64
Further, there are other examples of licenses that are entitled
to due process protections but not takings protections. We have
held that [a] drivers license represents an important property
interest which is protected under the due process clause of the
Alaska Constitution,65 but we have never recognized such an
interest under the takings clause. If drivers licenses were also
given property status for takings purposes, then drivers could
potentially bring regulatory takings claims for the effect that
typical traffic regulations, such as speed limits, have on the
value of their licenses. Similarly, a CFEC permit may convey a
property interest for due process purposes, but a thorough
analysis of the factors cited in American Pelagic and Conti
reveals that they should not be considered property for purposes
of a takings challenge.
For these reasons, the superior court was correct to
conclude that a CFEC permit is not property for purposes of the
takings clauses of the Alaska and Federal Constitutions.
2. Because the CFEC permits are not property, it is unnecessary
to engage in per se or de facto takings analysis.
The salmon fishers argue that they have valid inverse
condemnation claims notwithstanding the states police powers over
fishing. The state argues that CFEC permits are subject to
regulations of the board, that the states valid exercise of its
traditional police power does not create a right to compensation,
and that appellants cannot allege facts to support either a per
se or de facto takings claim. As discussed above, CFEC permits
are not property for purposes of a takings claim. Thus, because
the first prong of the takings test is not met, it is unnecessary
to proceed with a full takings analysis.
C. The Superior Court Did Not Err in Concluding that
Regulations Affecting the Value of Shore Fishery Leases Did Not
Result in a Compensable Taking of the Leases.
A. The superior court concluded that the shore fishery leases
confer a limited property interest in submerged land but that
there was no taking because the salmon fishers waived any
compensation right when they entered into the leases. The
superior court also reasoned that the salmon fishers would still
not be entitled to compensation under takings analysis even if
they had not waived the claim in their leases. The salmon
fishers argue that they did not waive their right to bring a
regulatory takings claim because no part of the shore fishery
leases . . . can reasonably be construed as a waiver of the
lessees right to bring an action asserting inverse condemnation.
The state responds that the shore fishery leases grant only a
limited interest in land subject to all board regulations, that
fisheries management represents a traditional police power rather
than an eminent domain power, and that the salmon fishers cannot
allege facts to support a per se or de facto takings claim. We
agree with the state.
1. The superior court did not err in concluding that the shore
fishery leases convey only a limited interest in submerged land.
The superior court concluded that the shore fishery
leases convey a property interest in submerged land but not in
the water above the land or the fish in the water. The state and
the salmon fishers appear to agree with the superior courts
conclusion, but they seem to disagree on the implications of that
conclusion. The state reasons that lease holders have never
obtained a property interest that guarantees any level of fishing
opportunity or allows violation of the Boards fishery
regulations.
Alaska Statute 38.05.082(e) states, [t]he lease of
submerged land conveys no interest in the water above the land or
in the fish in the water. This language indicates that shore
fishery leases convey a property interest in submerged land which
must be justly compensated if physically taken from the lessee.
However, the language also states that the lease grants no
property right in the water or in the harvest of fish. Shore
fishery leases were never intended to convey more than a limited
property interest. Rather, they were intended to provide the
mere right to exclude other set net fishers. They are issued at
a nominal cost and the annual rent is also nominal, with annual
rent set at a rate only equal to the administrative costs
involved in processing the leasehold applications.66 Furthermore,
no permanent improvements are allowed on a shore fishery lease.67
If a shore fishery lease is taken by another government entity,
all the lessee is entitled to is an abatement of rents. Thus,
the superior court correctly recognized that the property
interest granted in the shore fishery leases is limited to an
interest in submerged land and does not include the right to
harvest fish free of state regulation. Therefore, a takings
analysis must focus solely on the effects the regulations may
have had on an interest in the submerged land alone.
2. The superior court did not err in concluding that the
regulations did not effect a taking of the shore fishery leases
because the leases contain language permitting the regulations at
issue.
The superior court concluded that the salmon fishers
contracted away their ability to bring a successful takings claim
involving the regulations at issue when they signed the shore
fishery lease agreements. The salmon fishers argue that they did
not expressly nor implicitly waive their takings claims by
signing the leases. The state responds that the salmon fishers
never had a property right (the right to use leased land in
violation of valid Board regulations) to waive, but that if
waiver analysis is used, the terms of the lease would constitute
an express waiver of any takings claim challenging valid
regulations of the board.
Under Alaska law, the right to compensation for a
taking can validly be waived or contracted away in the terms of a
lease.68 In determining what rights were conveyed with a shore
fishery lease, it is necessary to examine the actual language of
the lease. The lease agreement states:
This lease does not limit the power of the
State of Alaska, its political subdivisions,
or the United States of America to enact and
enforce legislation or to adopt and enforce
regulations or ordinances affecting, directly
or indirectly, the activities of the lessee
or its agents in connection with this lease
or the value of the interest held under this
lease.
The terms of the lease agreement indicate that the superior court
was correct in finding that the salmon fishers entered into an
agreement that contracted away their right to compensation for a
non-physical taking and agreed to a lease that did not limit the
power of the Board to enforce regulations that affected the value
of the interest. The lease itself explicitly gives the state the
power to adopt regulations affecting the value of the lessees
property interest. The language is clear and unambiguous in
allowing state regulations to affect the value of the lease
without limitation. Thus, based on the plain language of the
lease, the salmon fishers lack a valid takings claim challenging
the effect the regulations have on the value of their shore
fishery leases.
V. CONCLUSION
Because the entry permits are not property for purposes
of constitutional takings analysis and because no compensable
taking of the shore leases occurred, we AFFIRM the decision of
the superior court in all respects.
_______________________________
1 Kollodge v. State, 757 P.2d 1024, 1026 n.4 (Alaska
1988).
2 Id. at 1026.
3 Catholic Bishop of N. Alaska v. Does 1-6, 141 P.3d 719,
722 (Alaska 2006).
4 Id.
5 Id.
6 Akpik v. State, Office of Mgmt. & Budget, 115 P.3d 532,
534 (Alaska 2005).
7 Id. at 535.
8 Id.
9 OCallaghan v. State, 920 P.2d 1387, 1388 (Alaska 1996).
10 Akpik, 115 P.3d at 535.
11 Id. (internal citations omitted).
12 817 P.2d 917 (Alaska 1991).
13 Id. at 920.
14 Id.
15 109 P.3d 924 (Alaska 2005).
16 Id. at 931.
17 Akpik v. State, Office of Mgmt. & Budget, 115 P.3d 532,
534 (Alaska 2005).
18 The state also argues that the salmon fishers claims
are barred by the AS 09.10.070 two year statute of limitations
for the taking or injuring of personal property. The shore
fishery leases in this case grant an interest in real property
submerged land. We have held that the ten year statute of
limitations for ejectment actions, AS 09.10.030, applies in cases
of inverse condemnation involving real property. See City of
Kenai v. Burnett, 860 P.2d 1233, 1240 n.13 (Alaska 1993). The
regulations at issue first went into effect in 1996, and the
complaint in this case was filed less than ten years later, on
October 25, 2005, so the claim based on damage to the value of
the shore fishery leases is not barred. The claim based on
damage to the value of the entry permits does not fall under the
two year statute of limitations because AS 09.10.070 applies only
to situations in which a private party takes or injures the
personal property of another private party, and this case
involves not private action but state action. Further, [w]e look
upon the defense of statute of limitations with disfavor and will
strain neither the law nor the facts in its aid. Fred Meyer of
Alaska, Inc. v. Adams, 963 P.2d 1025, 1027 n.6 (Alaska 1998).
Because the state fails to present a convincing argument that any
applicable statute of limitations bars the salmon fishers entry
permit takings claim, we address the merits of the claim.
19 1979 Formal Op. Atty Gen. 19.
20 Ch. 79, 1, SLA 1973.
21 See Jon David Weiss, A Taxing Issue: Are Limited Entry
Fishing Permits Property?, 9 Alaska L. Rev. 93, 96, 112 (1992)
(noting that state senate rejected idea that entry permits confer
property rights but concluding that permits are property or
rights to property for federal tax purposes).
22 See AS 16.05.251(a)(2) (stating that board may adopt
regulations it considers advisable for establishing open and
closed seasons and areas for the taking of fish); AS 16.05.251(e)
(stating that board may allocate fishery resources among personal
use, sport, guided sport, and commercial fisheries).
23 667 P.2d 1184 (Alaska 1983).
24 Id. at 1185-86.
25 AS 16.43.170(b).
26 AS 16.43.150(h).
27 Ostrosky, 667 P.2d at 1189.
28 Id. at 1191. See also Johns v. Commercial Fisheries
Entry Commn, 758 P.2d 1256, 1266 (Alaska 1988), where we observed
that in Ostrosky
we noted that there is a tension between the
limited entry clause of the state
constitution and the clauses of the
constitution which guarantee open fisheries.
We suggested that to be constitutional, a
limited entry system should impinge as little
as possible on the open fishery clauses
consistent with the constitutional purposes
of limited entry, namely prevention of
economic distress to fishermen and resource
conservation.
In Johns we accepted the least impingement possible approach as a
basis for requiring the Commercial Fisheries Entry Commission to
proceed forthwith to determine the optimum number of permits for
the fishery there in question. Johns, 758 P.2d at 1266.
29 Sonneman v. Hickel, 836 P.2d 936, 940 (Alaska 1992).
30 Article VIII, section 16 provides: No person shall be
involuntarily divested of his right to the use of waters, his
interests in lands, or improvements affecting either, except for
a superior beneficial use or public purpose and then only with
just compensation and by operation of law.
31 681 P.2d 336, 337 (Alaska 1984).
32 Id. at 338 n.4 (emphasis in original).
33 736 P.2d 320, 324 (Alaska 1987).
34 635 P.2d 827, 832 (Alaska 1981).
35 Id. at 830-31 (quoting 606 P.2d 1255, 1266-67 (Alaska
1981)).
36 The federal cases involve the Federal Constitutions
takings clause, which is less protective than the takings clause
found in the Alaska Constitution. See Ehrlander v. State, Dept
of Transp. & Pub. Facilities, 797 P.2d 629, 633 (Alaska 1990)
(The inclusion of the term damage [in the Alaska Constitutions
takings clause] affords the property owner broader protection
than that conferred by the Fifth Amendment to the Federal
Constitution.).
37 291 F.3d 1334, 1336-37 (Fed. Cir. 2002).
38 Id. at 1337.
39 Id. at 1341.
40 Id. at 1340.
41 Id. (quoting Lucas v. South Carolina Coastal Council,
505 U.S. 1003, 1030 (1992)).
42 Id. at 1340.
43 Id. at 1341.
44 Id. at 1341-42.
45 379 F.3d 1363 (Fed. Cir. 2004).
46 Id. at 1366, 1374.
47 Id. at 1374.
48 Id. at 1379-80.
49 AS 16.43.150(e).
50 See AS 16.43.010-.970; AS 16.05.251.
51 American Pelagic, 379 F.3d at 1374; Conti v. United
States, 291 F.3d 1334, 1341-42 (Fed. Cir. 2002).
52 See AS 16.43.170.
53 Grunert v. State, 109 P.3d 924, 934 (Alaska 2005).
54 See AS 16.43.150(g).
55 AS 16.43.170(a).
56 AS 16.43.170(b).
57 State, Bd. of Fisheries v. Grunert, 139 P.3d 1226, 1239
(Alaska 2006).
58 See AS 16.43.170(e) (The holder of an entry permit who
qualified for that entry permit in a priority classification
designated under AS 16.43.250(c) may not transfer that permit.).
59 The fishers assertion that the CFEC permits are
property because they can be used as collateral for certain loans
is unavailing for these same reasons, because if there are
limitations on the transferability of CFEC permits, then there
must be similar limits on their use as collateral.
60 AS 16.43.150(e).
61 AS 16.43.950; see also AS 16.05.251(a)(2).
62 Miners Estate v. Commercial Fisheries Entry Commn, 635
P.2d 827, 832 (Alaska 1981).
63 Id.
64 544 U.S. 528, 540-43 (2005) (holding that formula
inquiring whether government regulation substantially advances a
legitimate state interest is a due process inquiry and not an
appropriate test for determining whether a taking has occurred).
65 Javed v. Dept of Pub. Safety, Div. of Motor Vehicles,
921 P.2d 620, 622 (1996).
66 AS 38.05.082(c).
67 11 AAC 64.060 (2008).
68 Wessells v. State, Dept of Highways, 562 P.2d 1042,
1045 (Alaska 1977).
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