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Dept. of Fish and Game v. Kluti Kaah Native Village of Copper Center (5/8/92), 831 P 2d 1270
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NOTICE: This opinion is subject to formal correction
before publication in the Pacific Reporter. Readers are
requested to bring typographical or other formal errors to
the attention of the Clerk of the Appellate Courts, 303 K
Street, Anchorage, Alaska 99501, in order that corrections
may be made prior to permanent publication.
THE SUPREME COURT OF THE STATE OF ALASKA
STATE OF ALASKA and CARL ROSIER, )
in his official capacity as )
Commissioner of the Department )
of Fish and Game, )
)
Petitioners, ) File No. S-4712
)
v. ) 3AN 91 04554 CI
)
KLUTI KAAH NATIVE VILLAGE OF ) O P I N I O N
COPPER CENTER, )
)
Respondent. ) [No. 3839 - May 8, 1992]
________________________________)
Petition for Review from the Superior Court
of the State of Alaska, Third Judicial
District, Anchorage, Joan M. Katz, Judge.
Appearances: James Cantor, Assistant Attor
ney General, Anchorage, and Charles Cole,
Attorney General, Juneau, for Petitioners.
Robert T. Anderson, Lawrence A.
Aschenbrenner, Bart T. Garber, Native
American Rights Fund, Anchorage, for
Respondent. William E. Caldwell, Alaska Legal
Services, Fairbanks, and Carol H. Daniel,
Alaska Legal Services, Anchorage, for Amicus
Curiae Morry. John Sky Starkey, Bethel, for
Amicus Curiae Kwethluk.
Before: Rabinowitz, Chief Justice, Burke,
Matthews, Compton and Moore, Justices.
BURKE, Justice.
RABINOWITZ, Chief Justice, with whom COMPTON,
Justice, joins, dissenting.
We granted this emergency petition to review the
superior court's issuance of a preliminary injunction which,
essentially, replaced the State Board of Game's seven day general
moose hunt with a twenty-six day subsistence hunt for residents
of the Kluti Kaah Native Village of Copper Center. The state
contends that the superior court misapplied the "balance of
hardships" test in issuing the injunction and, generally,
overstepped its authority. Kluti Kaah responds that the court's
equitable powers were properly invoked to protect them from an
illegal regulation and that the court crafted an injunction which
adequately protected the interests of the state and the general
public. We agree with the state that the injunction should not
have been issued. Specifically, we conclude that the superior
court failed to give due consideration to the state's interest in
developing and maintaining a uniform system of game allocation
and that its decree did not adequately protect the interests of
other subsistence hunters or guard against depletion of the moose
population.1
I
The parties are in substantial agreement regarding the
facts of this case, at least as concerns the injunction. In
March 1991, the Board of Game met and after lengthy discussion,
established a seven day season to hunt moose in Game Management
Unit 13. The hunt was open to both sport and subsistence hunters
and was scheduled for September 5-11, 1991. The length of the
hunt was designed to allow for a harvest of 600 moose and was
partly based on estimates of average times spent in the field by
successful and unsuccessful hunters.
Transcripts of the Board's discussion make it clear
that the Board originally wanted to have a short season for sport
hunters and a longer "Tier II hunt"for subsistence hunters.2 In
past seasons, this was done. The Department of Law, however,
advised the Board that a separate subsistence hunt would not be
legal if there were enough moose to support both a sport and
subsistence hunt. This advice was based on the Department's
interpretation of Alaska subsistence law following McDowell v.
State, 785 P.2d 1 (Alaska 1989). Ultimately, the Board abandoned
the idea of separate hunts and adopted the seven day general
hunt.
In the summer of 1991, the residents of Kluti Kaah
sought a preliminary injunction prohibiting the state's
enforcement of the seven day hunt and requesting that the court
establish a longer subsistence hunt for their benefit. Kluti
Kaah filed a single affidavit with the superior court to support
its claim for injunctive relief.3
On August 16, 1991, Judge Katz issued the preliminary
injunction giving rise to this petition after finding that (1)
the harm to Kluti Kaah residents in missing their traditional
hunt would be irreparable; (2) the interests of the state and the
public could be adequately protected; and (3) the case raised
serious and substantial questions. The injunction prohibited the
state from enforcing the seven day moose hunt against the 267
residents of Kluti Kaah. The injunction then provided that "the
Board [of Game] may enforce a season of no less than August 25,
1991 to September 20, 1991." The superior court entered a
supplemental order, on August 21, that limited the Kluti Kaah
residents to a harvest of no more than forty moose and required
that they obtain permits.
We issued a stay of the preliminary injunction on
August 23, 1991 and granted the state's petition for review on
August 29, 1991. On August 23, seven other Native villages
sought expedited relief from the superior court in order to
partake in the expanded hunt.
II
In her order,4 Judge Katz specifically applied the
"balance of hardships"approach to preliminary injunctions that
we adopted in A.J. Industries, Inc. v. Alaska Public Service
Comm'n, 470 P.2d 537 (Alaska 1970), modified in other respects,
483 P.2d 198 (Alaska 1971):
[T]he rule requiring a clear showing of
probable success applies in situations where
the party asking for relief does not stand to
suffer irreparable harm, or where the party
against whom the injunction is sought will
suffer injury if the injunction is issued,
[but] a different rule applies where the
party seeking the injunction stands to suffer
irreparable harm and where, at the same time,
the opposing party can be protected from
injury. . . .
. . . .
This approach is termed the
"balance of hardships"approach. The balance
of hardships is determined by weighing the
harm that will be suffered by the plaintiff
if an injunction is not granted, against the
harm that will be imposed upon the defendant
by the granting of an injunction.
Id. at 540 (footnotes omitted). We have since distilled the
"balance of hardships"rule of A.J. Industries to a three-part
test: "(1) the plaintiff must be faced with irreparable harm; (2)
the opposing party must be adequately protected; and (3) the
plaintiff must raise `serious' and substantial questions going to
the merits of the case; that is, the issues raised cannot be
`frivolous or obviously without merit.'" Messerli v. Department
of Natural Resources, 768 P.2d 1112, 1122 (Alaska 1989) (citing
and quoting Alaska Public Utilities Comm'n v. Greater Anchorage
Area Borough, 534 P.2d 549, 554 (Alaska 1975)).
We recently applied this rule in reviewing a temporary
restraining order which benefited commercial fishermen at the
expense of subsistence users. See State v. United Cook Inlet
Drift Ass'n, 815 P.2d 378 (Alaska 1991). In reversing the order,
we noted that the "serious and substantial question"standard:
applies only where the injury which will
result from the temporary restraining order
or the preliminary injunction can be
indemnified by a bond or where it is
relatively slight in comparison to the injury
which the person seeking the injunction will
suffer if the injunction is not granted.
Id. at 378-79 (citations omitted).
1. Irreparable Injury5
The superior court found that the residents of Kluti
Kaah could suffer two types of harm if the injunction were not
issued: (1) the residents' 1991-92 winter subsistence needs for
moose could go unfulfilled, and (2) they would be denied the
ability to pass on to their children their traditional and
customary method of subsistence hunting.
The state argues that Kluti Kaah's alleged injury is
neither certain nor irreparable. Kluti Kaah's factual showing in
support of its claim of irreparable harm consisted, in its
entirety, of a single affidavit containing the obviously self-
interested statements of a single village resident. Such
evidence cannot establish with any genuine certainty that Kluti
Kaah's residents could not meet their subsistence needs for moose
during the shortened hunt. However, without delving into the
merits of the case, we are unable to definitely conclude that
Kluti Kaah has failed to establish irreparable injury as a result
of the shorter hunt. Judge Katz noted the weakness in Kluti
Kaah's showing, but still ruled that Kluti Kaah had shown
irreparable injury. We will assume, for purposes of this
opinion, that her ruling on this point was correct.
2. Adequate Protection
In her order, Judge Katz stated:
Should the only change in the hunt
be the extension of the season for the
members of Kluti Kaah, the court can perceive
no adverse impact on the state from a
procedural stand-point. Nor would the public
in general or sports hunters in particular
suffer any material infringement of hunting
opportunity or diminution of the moose
population. With a cap of 40 moose, any
advantage obtained by the people of Kluti
Kaah would be de minimis.
The state strenuously disagrees with the court's assessment of
the harm caused by the issuance of the injunction. It claims
that the injunction interferes with its role as protector of the
resource. It also maintains that other subsistence users, whom it
represents and whose interests the court must consider, are
inadequately protected by this order.6 We agree.
The trial court failed to consider the clear
ramifications of its decision. Although the forty moose limit
imposed by the court may adequately protect the moose population
if no other similarly situated groups seek an extended hunting
season, the superior court can in no way ensure that others will
not seek similar relief. If this distinct possibility, in fact,
occurs, we question the court's acumen, given the procedural and
substantive limitations of a trial setting, to accurately
determine when the moose population is taxed.7
It was evident at the time the court issued the
injunction that Kluti Kaah residents were being advantaged when
compared to other subsistence hunters. They would not have to
compete with the others, could be more opportunistic in deciding
when to hunt, and would have more time in which to bag their
limit. It should have also been evident that other similarly
situated groups would want the same advantages and would begin a
rush to the courthouse.8 This likelihood has now been borne out
by the seven other Native villages that have filed suit.
In determining whether to issue a preliminary
injunction, the trial court should have considered the threat
that multiple injunctions would represent to the moose population
and the problems it would create for orderly game allocation.9
Its failure to do so constitutes an abuse of discretion.
3. "Serious Question"Standard
The party seeking a preliminary injunction is required
to make a clear showing of probable success on the merits when
they do "not stand to suffer irreparable harm, or where the party
against whom the injunction is sought will suffer injury if the
injunction is issued."A. J. Industries, 470 P.2d at 540.
The trial court explicitly applied the "serious and
substantial question" standard because it concluded that the
balance of hardships clearly tipped toward the residents of Kluti
Kaah. Our assessment of the balance of hardship is considerably
different, and therefore we conclude that the trial court applied
the wrong standard to the case.
Accordingly, we hold that the superior court failed to
adequately weigh and protect the interests of the state, other
hunters, or the resource in issuing its injunction. Since the
state's interests were significantly harmed by the injunction,
the trial court should have also required Kluti Kaah to make a
clear showing of probable success on the merits. We therefore
VACATE the injunction and return the case to the superior court
for further proceedings on the merits.
RABINOWITZ, Chief Justice, with whom COMPTON, Justice, joins
dissenting.
I would affirm the superior court's issuance of a
preliminary injunction in the circumstances of this case.
In deciding to issue a preliminary injunction the
superior court applied the "serious and substantial question"10
standard and found that the Kluti Kaah would suffer two forms of
harm unless an injunction was issued: more particularly, the
court concluded that the Kluti Kaah would be denied the
opportunity to transmit knowledge of traditional and customary
hunting patterns to their children, and that their 1991-92 winter
subsistence needs for moose could possibly go unfulfilled. Since
the Kluti Kaah established both irreparable injury and
substantial questions going to the merits, I am of the view that
the superior court did not err in granting Kluti Kaah a
preliminary injunction.
Kluti Kaah claimed that the seven day season would
irreparably harm them because they will be denied the ability to
maintain and transmit to their children knowledge of the Ahtna
people's traditional and customary methods of subsistence
hunting. The superior court agreed, noting:
There is no question that the
traditional Ahtna method of hunting this game
population encompassed much more protracted
opportunities to engage in this activity with
the younger generation. To compress the long
standing custom into a sport hunter's seven-
day `vacation' is to legislate a substantial
departure from the historical subsistence
hunting experience.
The superior court concluded that the provisions of AS
16.05.258(f)11 supported the Kluti Kaah's contention that the
Board was obligated to consider customary and traditional hunting
patterns (methods and means), not just quantitative requirements,
in determining the appropriate length of season for the moose
hunt in question.12 The superior court interpreted the length of
time which Kluti Kaah members needed to traditionally harvest
moose to come within the ambit of "means" as used in AS
16.05.258(f).13 Because the Board failed to consider the
historical duration of the Ahtna people's traditional and
customary patterns of hunting moose in the relevant game
management unit the superior court concluded that:
[I]t is highly questionable whether the
Board was `reasonably' regulating the season
in this case, when it failed to take the
historical hunting period into account.
The superior court's reasoning is sound. The
provisions of AS 16.05.258(c) and (f) required the Board to
consider traditional and customary methods and means of hunting
in determining the length of the moose hunting season. In
Madison v. Alaska Department of Fish & Game, 696 P.2d 168 (Alaska
1985), we held that "the phrase `customary and traditional'
modifies the word `uses' in [the statute]. It does not refer to
users." Id. at 174. However, we also stated that,
[t]he legislative history indicates that
the legislature intended to protect
subsistence use, not limit it. The words
`customary and traditional' serve as a
guideline to recognize historical subsistence
use by individuals, both [N]ative and non-
[N]ative Alaskans.
Id. at 176.
"[C]ustomary and traditional"uses is employed to
modify and define "subsistence uses"in AS 16.05.940(30) as
follows:
"subsistence uses" means the
noncommercial, customary and traditional uses
of wild, renewable resources by a resident
. . . for direct personal or family
consumption as food, shelter, fuel, clothing,
tools, or transportation, for the making and
selling of handicraft articles out of
nonedible by-products of fish and wildlife
resources taken for personal or family
consumption, and for the customary trade,
barter, or sharing for personal or family
consumption. . . .
(Emphasis added.) "Subsistence hunting" is defined by AS
16.05.940(29) as follows:
"subsistence hunting"means the taking
of, hunting for, or possession of game by a
resident . . . of the state for subsistence
uses by means defined by the Board of Game;14
(Emphasis added.) Since "subsistence hunting" incorporates
"subsistence uses," and "subsistence uses" contemplates
"customary and traditional uses,"reading the subsistence statute
as a whole leads me to conclude that subsistence hunting
encompasses customary and traditional use patterns, methods and
means.
In addition to the above, I am of the view that the
Kluti Kaah established irreparable harm in connection with their
claim that given the truncated hunting season, their winter
subsistence needs could possibly go unfulfilled. In previous
years, Kluti Kaah members enjoyed a substantially longer hunting
period.15 As the superior court found, the Board established a
seven day general hunt. The limited hunt was imposed on the
Kluti Kaah even though the state's own expert from the
Subsistence Division, Dr. James Fall, made it clear that a
shortened season would not satisfy traditional harvest practices.
In the course of discussing the merits of a shortened season at
the Board's March 1991 meeting, Dr. Fall stated:
We know from working with
subsistence hunting and fishing systems is
[sic] that one important aspect that I think
the boards have tried to provide for in the
management system is flexibility and, in
other words providing windows of opportunity
for people to engage in hunting and fishing
efforts, certainly an average of about six
days might be what people spend but of course
those six days might come at different times
within that larger window of opportunity. We
know that people's choices, decisions about
when to hunt are influenced by a variety of
factors, one of the major ones of course is
where the animals are in relation to a
particular communities' traditional hunting
area or access place, weather of course plays
a major role in choosing when to go hunting
and poor weather can pretty much eliminate
hunting opportunity in a short season.
Likewise, other kinds of subsistence
activities that are taking place within a
period of time also influence the choice of
just what to do and could preclude a
particular activity if the window of
opportunity was rather short.
Another issue in the Copper Basin
has been the issue of hunter numbers and
crowding we do know that large numbers of
hunters in the field in a short period of
time can inhibit hunting or inhibit hunting
success.
The Board rejected Dr. Fall's advice despite the
statutory mandate that the Subsistence Division "participate with
other divisions in the preparation of statewide regional
management plans so that those plans recognize and incorporate
the needs of subsistence users of fish and game." AS
16.05.094(7) (emphasis added).
I also must note my disagreement with the court's
conclusion that the superior court erred in its conclusion that
the injury or harm to the public and the state would be
insignificant. In regard to this issue the superior court
stated:
Plaintiff essentially seeks only that it
be allowed a period from August 25 through
September 20 to conduct its subsistence hunt.
The Board already incorporated Kluti Kaah's
need for 40 moose into the 600 moose limit.
There is no evidence before the court to
suggest that extending the time period for
plaintiff's members to conduct their hunt
would significantly impact the total numbers
of moose harvested.
Such a remedy would benefit a
particular subgroup of subsistence users.
Such relief would not, however, be based on a
rural preference or on any other prohibited
classification. Plaintiff's members would
receive favorable treatment only because (1)
they brought this action; and (2) the impact
on the state and other moose hunters of
affording this relief to Kluti Kaah can be
evaluated based on the existing record.
Should the only change in the hunt
be the extension of the season for the
members of Kluti Kaah, the court can perceive
no adverse impact on the state from a
procedural standpoint. Nor would the public
in general or sports hunters in particular
suffer any material infringement of hunting
opportunity or diminution of the moose
population. With a cap of 40 moose, any
advantage obtained by the people of Kluti
Kaah would be de minimus.
State v. Kluti Kaah, No. 3AN-91-04554 CI (Alaska Super., August
16, 1991).
I cannot find an abuse of discretion in the superior
court's analysis and resolution of this issue. The Kluti Kaah
persuasively argue that other moose hunters in the affected unit
are neither assisted nor harmed by the terms of the preliminary
injunction since the seven day general hunt remains in effect for
them and no evidence was adduced by the state that the injunction
would result in harm to the particular moose resource. Nor did
the superior court's injunction impinge on the Board's expertise
since the Board had previously allotted 40 moose for the Kluti
Kaah in its overall determination that 600 moose could be taken
in the season and game unit in question.
Admittedly, it is unfortunate that the Kluti Kaah had
to resort to the courts for vindication of their customary and
traditional subsistence hunting patterns. Nevertheless, such
action is well within the traditions of our legal system which
afford litigants the opportunity to obtain a determination as to
the legality of the substantive content of a particular
regulation in light of constitutional or controlling statutory
criteria. See AS 44.62.30016; see also Powers v. Public Employees'
Retirement Bd., 757 P.2d 65, 67 (Alaska 1988) (supreme court may
review administrative regulations to determine if they are within
the statutory authority granted to agency by legislature);
Madison v. Alaska Dep't of Fish & Game, 696 P.2d 168, 173 (Alaska
1985) (statutory interpretation of the words "customary and
traditional" and the question of whether the board has acted
within the scope of its authority fall into the realm of special
competency of the courts). The rush to the courthouse fears of
the majority can ordinarily be attenuated and accommodated by
established procedures
which permit consolidation,17 or class certification18 where
appropriate19, and by restraint on the judiciary's part when the
circumstances permit deference to the administrative agency's
initial determination of the particular issue. Cf. 4 KENNETH CULP
DAVIS, ADMINISTRATIVE LAW TREATISE 22:1, 81 (1983) ("Primary
jurisdiction is a doctrine of common law, wholly court-made, that
is designed to guide a court in determining whether and when it
should refrain from or postpone the exercise of its own
jurisdiction so that an agency may first answer some question
presented."); see also State v. Zia Inc., 556 P.2d 1257, 1262
(Alaska 1976) (under doctrine of primary jurisdiction a court may
stay or dismiss pending litigation so as to enable agency to
initially pass on an aspect of the case calling for
administrative expertise).
I would affirm the superior court's preliminary
injunction for the reasons stated by that court, namely:
Because plaintiff has established
irreparable injury and substantial questions
going to the merits, and because plaintiff
has further demonstrated that if limited
relief is afforded Kluti Kaah, the harm to
the state and the public will be
insignificant, the balance of hardships tilts
clearly in plaintiff's favor.
State v. Kluti Kaah, No. 3AN-91-04554 CI (Alaska Super., August
16, 1991).
_______________________________
1. Although both sides forcefully argue the merits of
their underlying positions concerning the legality of the Board
of Game regulation, we find it unnecessary to address their
arguments at this stage of the litigation.
2. We explained the "tiers"established by our subsistence
law in Madison v. Alaska Dep't of Fish & Game, 696 P.2d 168, 174
(Alaska 1985). There are potentially two tiers of subsistence
users under AS 16.05.258(c). The first tier includes all subsis-
tence users. Under the statute, all subsistence uses have
priority over sport and commercial uses "if the harvestable
portion [of a fish or game population] is not sufficient to
accommodate all consumptive uses of the stock or population, but
is sufficient to accommodate subsistence uses of the stock or
population." AS 16.05.258(c) (1987). If the statutory priority
given all subsistence users still results in too few fish or game
for all subsistence uses, then the Board is authorized to
establish a second tier of preferred subsistence users based on
legislative criteria expressed in AS 16.05.258(c)(1), (2) and
(3), namely, customary and direct dependence on the resource,
local residency, and availability of alternative resources.
It appears that the expression "Tier II hunt"has been
adopted by fish and game regulators to refer to hunts open
exclusively to subsistence users. Inasmuch as this term derives
from the language we employed in Madison, it is not strictly
accurate. A hunt open to all subsistence hunters is actually a
tier I hunt.
3. In the affidavit, Kenneth Johns, a member of the Tribal
Council for Kluti Kaah Native Village, claimed that the season
was simply a "sport hunt"and did not afford his people an
opportunity to conduct their traditional moose hunt or pass on
their heritage to their children. He also predicted that the
short hunting season would not provide sufficient moose to meet
the subsistence needs of the Kluti Kaah residents.
4. In reviewing Judge Katz' order, we apply an abuse of
discretion standard. In Alaska Public Utilities Comm'n v.
Greater Anchorage Area Borough, 534 P.2d 549 (Alaska 1975), we
quoted with approval the following standard of review:
It is well settled that the granting of
a temporary injunction, pending final
hearing, is within the sound discretion of
the trial court; and that, upon appeal an
order granting such an injunction will not be
disturbed unless contrary to some rule of
equity, or the result of improvident exercise
of judicial discretion.
Id. at 557, (quoting Prendergast v. New York Tel. Co., 262 U.S.
43, 50-51 (1923)).
5. "Irreparable injury""includes an injury, whether great
or small, which ought not to be submitted to, on the one hand, or
inflicted, on the other; and which, because it is so large or so
small, or is of such constant and frequent occurrence, or because
no certain pecuniary standard exists for the measurement of
damages, cannot receive reasonable redress in a court of law."
Black's Law Dictionary, 786 (6th Ed. 1990).
6. Kluti Kaah argues that other hunters are neither helped
nor harmed by the injunction because the seven day general hunt
remains in effect for them. They also claim that the State
presented no evidence at trial showing any harm to the resource
due to the injunction. Finally, they argue that Judge Katz was
not required to fashion a remedy that includes everyone who may
have been injured by the Board's action, but merely to provide
relief for those before her court. While Kluti Kaah's arguments
may be correct, they miss the point of the "adequate protection"
requirement.
7. Judge Holland addressed this concern in John v. Alaska,
A85-698, Unpublished Order at 5 (D. Alaska Jan. 19, 1990):
Firstly, the Board must bring
considerable expertise to the complex fish
management questions that come before it.
This court does not have that expertise.
While the court is quite comfortable . . . in
its role as the reviewer of agency rule-
making . . ., the court should not--for lack
of expertise--make the fine scientific
wildlife management decisions that are called
for by state and federal law. In short, the
fish and game management ought to be done by
the fish and game managers.
See also Meier v. State, 739 P.2d 172, 174 (Alaska 1987).
8. The dissent maintains that our "rush to the courthouse
fears" may be allayed by the use of consolidation and class-
certification. In fact, Judge Katz made no attempt to certify as
a class the other subsistence users of the resource or
consolidate the litigation. Therefore, we fail to see how the
mere existence of these well-recognized procedures repairs the
defects of the injunction in this case.
9. In Alaska Public Utilities Comm'n, 534 P.2d at 553, we
noted that:
the propriety of issuing an injunction
turns, in part, on weighing the demands of
justice in the individual case against the
interest in avoiding undue interference with
the administrative process. In cases such as
[this] one where an interim rate increase is
being sought by a utility, there is the
danger of a too frequent resort to the
injunction by the superior courts which, in
turn, might cause the administrative
commission automatically to grant such
increases (having been effectively deprived
of any real discretion in the matter).
(emphasis added).
A similar concern is apparent in the area of game management. We
also note that, in this case, the superior court's preliminary
injunction was not only prohibitory in nature (i.e., precluding
the state from enforcing its seven-day hunt against Kluti Kaah
residents) but was also mandatory in that it established a 26-day
moose hunt exclusively for Kluti Kaah. It is well settled that:
a mandatory injunction will seldom be
granted before final hearing, and . . .
should be granted only in extreme or
exceptional cases [and] . . . with great
caution.
42 Am. Jur. 2d Injunctions 21 (1969).
10. In State v. United Cook Inlet Drift Ass'n, 815 P.2d 378
(Alaska 1991), we said that this standard:
applies only where the injury which will
result from the temporary restraining order
or the preliminary injunction can be
indemnified by a bond or where it is
relatively slight in comparison to the injury
which the person seeking the injunction will
suffer if the injunction is not granted.
(Citations omitted), id. at 379.
11. AS 16.05.258(f) provides in relevant part:
Takings authorized under this section
are subject to reasonable regulations of
seasons, catch or bag limits, and methods and
means.
12. The superior court additionally relied on the text of AS
16.05.258(c) which reads in part:
The boards shall adopt subsistence
fishing and subsistence hunting regulations
for each stock and population for which a
harvestable portion is determined to exist
under (b)(1) of this section. . . . If it is
necessary to restrict subsistence fishing or
subsistence hunting in order to assure
sustained yield or continue subsistence uses,
then the preference shall be limited, and the
boards shall distinguish among subsistence
users, by applying the following
criteria:. . . .
13. See note 2, supra, for the text of AS 16.05.258(f).
14. Under AS 16.05.940(31) "take" is defined in the
following manner:
"take"means taking, pursuing, hunting,
fishing, trapping, or in any manner
disturbing, capturing, or killing or
attempting to take, pursue, hunt, fish, trap,
or in any manner capture or kill fish or
game;
15. The regulatory history for moose taken in the Copper
River Basin since statehood was summarized for the Board of Game
at its March 1991 meeting by Dr. James Fall, an anthropologist
with the Subsistence Division of the Alaska Department of Fish
and Game:
I reviewed it back to 1959 and it looks
like the shortest period that we've had
available to subsistence hunters in that unit
is 20 days, it was as long as 50 days back in
the 50's and 60's and through much of the
early 1980's, there was a 20 day season
available to subsistence hunters and in about
'86 or '87 the board added on 6 days at the
beginning of the season for subsistence
hunters, it was a subsistence only season . .
. . [sic]
The state now asserts that there was no reduction in hunting days
this year because only five days were provided last year, so that
the "status quo from the perspective of the hunter is five days."
The state's argument is unpersuasive because in addition to the
general five day fall hunt, Kluti Kaah members also had a 31 day
Tier II season in December, for a total of 36 hunting days. See
5 AAC 85.045(11) (July 1991 Supp.).
16. AS 44.62.300 provides in relevant part:
Judicial review of validity. An
interested person may get a judicial
declaration on the validity of a regulation
by bringing an action for declaratory relief
in the superior court. In addition to any
other ground the court may declare the
regulation invalid (1) for a substantial
failure to comply with AS 44.62.010 --
44.62.320,. . . .
17. Alaska Civil Rule 42(a) provides:
When actions involving a common question
of law or fact are pending before the court,
it may order a joint hearing or trial of any
or all the matters in issue in the actions;
it may make such orders concerning
proceedings therein as may tend to avoid
unnecessary costs or delay. . . .
18. Alaska Civil Rule 23(a) provides:
One or more members of a class may sue
or be sued as representative parties on
behalf of all only if (1) the class is so
numerous that joinder of all members is
impracticable, (2) there are questions of law
or fact common to the class, (3) the claims
or defenses of the representative parties are
typical of the claims or defenses of the
class, and (4) the representative parties
will fairly and adequately protect the
interests of the class.
19. I note that in the instant case the record shows that
the original preliminary injunction was granted on August 16,
1991, prohibiting the state from enforcing the seven-day general
moose hunt against the 267 residents of Kluti Kaah. Thereafter
the superior court entered a supplemental order on August 21 that
limited the Kluti Kaah residents to a harvest of no more than
forty moose. On August 23, 1991, seven additional Native
villages filed an expedited request to share in the Kluti Kaah
hunt. However, this court entered a stay of the superior court's
preliminary injunction on the same day, August 23, 1991, pending
announcement of this court's decision whether to grant or deny
the state's petition for review.
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