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Wilson and State of Alaska v. Morry and Kwethluk Ira Council (7/10/92), 836 P 2d 358
<![CDATA[
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 )
DON WILSON, )
) Supreme Court No. S-4632, 4660
Appellants and )
Cross-Appellees, )
v. ) Superior Court No.
) 2BA-87-83 Civil
RILEY T. MORRY and )
KWETHLUK IRA COUNCIL, )
) O P I N I O N
Appellees and )
Cross-Appellants.)
________________________________) [No. 3866 - July 10, 1992]
Appeal from the Superior Court of the
State of Alaska, Second Judicial District,
Barrow,
Michael I. Jeffery, Judge.
Appearances: Stephen M. White,
Assistant Attorney General, Charles E. Cole,
Attorney General, Juneau, for
Appellants/Cross-Appellees. William E.
Caldwell, Fairbanks, Carol A. Daniel,
Anchorage, Alaska Legal Services Corp., for
Appellee/Cross-Appellant, Morry. John Sky
Starkey, Bethel, for Appellee/Cross-
Appellant, Kwethluk IRA Council. Eric Smith,
Anchorage, for Arctic Regional Council and
Ninilchik Traditional Council, Amici Curiae.
Robert T. Anderson, Native Americans Rights
Fund, Anchorage, for Kluti Kaah Native
Village of Copper Center, Amicus Curiae,
Michael A.D. Stanley, Juneau, for United Cook
Inlet Drift Association, Amicus Curiae.
Before: Rabinowitz, Chief Justice,
Burke, Matthews, Compton, and Moore,
Justices.
RABINOWITZ, Chief Justice.
INTRODUCTION
Alaska's big game tag regulation requires a brown bear
hunter to purchase a numbered, nontransferable tag before hunting
and then, after taking a bear, affix and keep the tag on the
animal until it is stored, consumed, or exported from the state.
5 AAC 92.012(c). Brown bear sealing regulations require that a
hunter keep the skin and skull of a bear if taken in certain game
management units, and within thirty days, have a state official
stamp a seal on these parts. At sealing, the official obtains a
tooth from the skull, and the hunter signs a sealing certificate.
5 AAC 92.165.1 At issue in this appeal is the validity of these
regulations under Alaska's subsistence preference law.
In July 1985, appellee/cross-appellant, Riley T. Morry,
an Inupiat subsistence hunter, was charged with shooting a brown
bear without complying with the above regulations. As a result
of a criminal prosecution brought against him for failure to
comply with the regulations (later dismissed), Morry filed for
declaratory relief and damages against the State of Alaska and
Trooper Don Wilson, challenging the validity of 5 AAC 92.012 and
5 AAC 92.165 under both federal and state subsistence laws.
Kwethluk IRA Council is the governing body for the
Yup'ik Eskimos of the Native Village of Kwethluk which is located
in the Lower Kuskokwim area of Southwest Alaska. Kwethluk
intervened in this case following unsuccessful rule-making
proposals it had made to the Board of Game seeking changes in
various regulations which were being applied to the subsistence
hunting of brown bears by the people of Kwethluk.
FACTS & PROCEEDINGS:
On June 30, 1984, Morry obtained a $25 Alaska
brown/grizzly bear tag and a "Gates of the Arctic National Park
Grizzly Bear Hunting Permit No. 6 from Alaska Division of Fish
and Game's (ADF&G) designated agent in Anaktuvuk Pass." The $25
bear tag expired on December 31, 1984; however, it did not state
that it expired less than 12 months after purchase. The Gates of
the Arctic permit stated that it was valid from July 1, 1984
through June 30, 1985.
In May 1985, Morry killed a grizzly bear and
distributed the meat to various households. Morry also notified
the ADF&G agent that he had taken the bear. Subsequently, the
agent went to Morry's house and "sealed"the bear hide with a
metal tag, and filled out an ADF&G "sealing certificate" form.
The agent did not "seal"the bear skull with a metal tag because
it needed cleaning.
Upon learning of this bear harvest, Trooper Don Wilson
initiated an investigation and proceeded to file a criminal
complaint against Morry charging him with four misdemeanors --
failure to obtain a "locking tag,"failure to affix such a tag,
failure to obtain a permit, and failure to seal the skull -- and
recommending punishment of 30 days in jail and a $800 fine. The
State voluntarily dismissed the criminal charges against Morry on
October 16, 1985. Morry continued to challenge the two
regulations under federal and state subsistence laws.
Subsequent to the original briefing in the superior
court, this court struck down the "rural preference"of the 1986
subsistence law in McDowell v. State, 785 P.2d 1 (Alaska 1989).
After further briefing, the superior court preliminarily
invalidated the challenged regulations and granted the board 90
days within which to review the application of the regulations to
subsistence uses under Alaska's subsistence laws as construed in
its decision. Judge Jeffery based his decision on a finding that
the Board of Game had failed to analyze the applicability of
these regulations to subsistence uses under the 1986 subsistence
preference law, AS 16.05.258(c), and hence had violated both the
subsistence preference law and the Administrative Procedures Act.
Of particular significance is the superior court's conclusion
that the board had been applying trophy or general big game
hunting regulations to subsistence uses without conducting any
analysis of the effect these regulations were having on
subsistence uses.
As guidance for the board when reviewing the
regulations, the superior court addressed and rejected Morry's
contention that it was impermissible for the board, at the first-
tier level, when the resource is sufficiently abundant to satisfy
all subsistence uses, to impose any regulatory restrictions upon
customary and traditional patterns and practices of resource
harvesting. The court rejected this argument on the basis that
the 1986 statute specifically states that: "[t]akings authorized
under this section are subject to reasonable regulation of
seasons, catch or bag limits, and methods and means." AS
16.05.258(f). However, the superior court found that the manner
of such regulating is still subject to special protection for
subsistence uses.
If the state is allowed to issue complex
regulations for subsistence uses -- violation
of which can result in substantial fines or
jail time -- the protection given to subsis
tence uses can be eroded just as surely as if
the numbers of game available for subsistence
uses were sharply reduced or eliminated.
When the state undertakes such regulation, it
must show that the requirements fulfill the
goals of 'conservation, development, and
utilization' of the game resource and that
the regulations are the least intrusive means
available to accomplish these goals.2
Thereafter, the state moved for an extension of time of
the 90-day deadline for action by the Board of Game and also
asked for a stay pending appeal. Morry opposed the state's
motion, and in addition, moved for further relief (as to the
board's adoption and implementation of its "all Alaskans"
policy), and for the entry of judgment pursuant to Civil Rule
54(b).
On May 18, 1991, the court granted Kwethluk's motion
for leave to intervene nunc pro tunc to May 24, 1990. On May 23,
1991, the court entered judgment and filed a decision denying the
state's motion for any further extension of time, and granted in
part the motions of Kwethluk and Morry for further relief.
In its decision, the superior court permanently
invalidated the regulations (subject to the right of the board to
conduct the review required by the October 1990 decision) and
enjoined application of the regulations to subsistence brown bear
hunting in the game management units (GMU) at issue. The court
stated:
This court has expected Board of
Game compliance so that the court and the
public would have had the benefit of the
board's expertise in evaluating the
continuing validity of these regulations as
applied to subsistence uses of brown/grizzly
bear in the particular game management units
at issue in this case. October 16th Decision
at 24-25. Since the Board of Game apparently
finds it impossible to undertake this review
until its March, 1992, meeting, the court has
no alternative but to craft an interim order
regulating subsistence hunting of
brown/grizzly bear in Game Management Units
17A, 17B, 18, 19A, 19B, 24, and 26, pending
board action and court review, as discussed
later in this memorandum. The interim
regulations and the interim finding of
invalidity of the existing regulations are
necessary to protect subsistence hunters from
prosecution under an invalid regulatory
scheme as applied to subsistence use of
brown/grizzly bear in these game management
units.
The superior court then directed the State to implement a system
allowing subsistence users hunting in these GMUs to each take one
bear per year, but with the requirement that a harvest report be
submitted to ADF&G within fifteen days of a taking, as set forth
for moose taken for funeral potlatches in 5 AAC 92.019. The
court reasoned that "[t]his manner of interim regulation is
likely to yield greater information for the Department concerning
brown/grizzly bear usage in North and Northwest Alaska than the
current regulations." The court further noted that "[t]he
existence of the interim regulatory scheme will eliminate the
problem of unregulated subsistence hunting discussed in [State
v.] Eluska,"724 P.2d 514, 516 (Alaska 1986).
Additionally, the superior court declared invalid the
Joint Boards' policy statement declaring that "all Alaskans are
now eligible subsistence users,"and its corollary that all
subsistence regulations must have state-wide uniformity,
unless interpreted to mean that 'all
Alaskans are eligible to be considered
subsistence users' if, prior to subsistence
hunting, their individual use of fish and
game meets criteria for 'noncommercial,
customary and traditional' subsistence uses
of the particular fish and game population
being harvested, under criteria established
by regulation such as 5 AAC 99.010(b).
(Emphasis in original.) The court also rejected plaintiff's
challenge to the Joint Boards' action in repealing and modifying
certain provisions of the "eight criteria regulation," 5 AAC
99.010(b), concluding that "[a] fair reading of the McDowell
decision . . . supports these actions taken by the Joint Boards."
The state now appeals from the superior court's
invalidation of the regulations, the form of remedy granted by
the court, and its ruling on the "all Alaskans"policy. Morry
and Kwethluk cross-appeal the superior court's holdings that the
changes to the eight-criteria regulation are valid, and also the
implication in the superior court's ruling that under McDowell
only individual, not community-based, patterns of use may be
protected.3
I. DID THE SUPERIOR COURT ERR IN INVALIDATING THE CHALLENGED
REGULATIONS?
Morry and Kwethluk assert that the challenged brown
bear regulations were adopted by the Board of Game without
consideration of, or compliance with the applicable laws relating
to subsistence. The central point of their argument is that AS
16.05.258(c) commands that the Board of Game "shall adopt. . .
subsistence hunting regulations for each . . . population for
which a harvestable portion is determined to exist." (Emphasis
added.) Morry and Kwethluk submit that the "noncommercial,
customary, and traditional uses" standard contained in the
definition of "subsistence uses"in AS 16.05.940(30) is plainly
related to non-trophy uses that are "for direct personal or
family consumption as food, shelter, fuel, clothing, tools or
transportation,"for the "making and selling"of handicrafts, and
for "customary trade, barter, or sharing."4
Morry and Kwethluk argue that in order for a reviewing
court to insure both that the agency has in fact taken a "hard
look" and that the courts are able to perform their judicial-
review obligations, non-adjudicative decisions of an agency must
be supported by an adequate decisional document. Citing
Peninsula Marketing Ass'n v. State, 817 P.2d 917, 923 (Alaska
1991), quoting Messerli v. Department of Natural Resources, 768
P.2d 1112, 1118 (Alaska 1989).5 Here they point out that this
court is completely disabled from reviewing the subject
regulations for consistency with the subsistence laws, because
the APA rule-making hearing, which would have provided a record
demonstrating careful consideration of the applicable subsistence
laws, was never held. Accordingly, Morry and Kwethluk contend
that the superior court did not err in finding that the
application of the regulations to subsistence uses is wholly
arbitrary and thus invalid.
The State and Wilson do not directly address the issue
of whether the regulations violate the APA or the subsistence
preference laws. Instead, they assert that the superior court
employed an incorrect analysis in its review of the questioned
big game fee and bear sealing regulations. They argue that the
superior court erred in substituting its judgment for the board's
judgment in an area "where highly specialized agency expertise is
involved." Citing Meier v. State, 739 P.2d 172, 174 (Alaska
1987). The State and Wilson assert that the superior court
invalidated the regulations because they do not generate enough
information. In this regard they argue that the superior court
acknowledged that there was some compliance with the regulations
and that as a consequence, some information was collected. Given
this function, they argue that the regulations were reasonable,
not arbitrary. "How well they served this purpose was not a
proper inquiry of the superior court."
As noted above, AS 16.05.258(c) mandates that the Board
of Game "shall adopt subsistence . . . hunting regulations for
each . . . population for which a harvestable portion is
determined to exist". (Emphasis added.) Given this command, we
conclude that Morry and Kwethluk's argument, that these trophy
hunting regulations do not constitute compliance with the
requirement of AS 16.06.258(c) that the Board of Game adopt
subsistence hunting regulations for the game in question, is
persuasive. In particular, we find compelling the following
arguments which were advanced by Morry and Kwethluk:
[w]hatever the 'noncommercial, customary
and traditional uses' standard of the
definition of 'subsistence uses' in AS
16.05.940(30) may mean, it is plainly related
to non-trophy uses that are 'for direct
personal or family consumption as food,
shelter, fuel, clothing, tools or
transportation,' for the 'making and selling'
of handicrafts, and for 'customary trade,
barter or sharing.' There is no hint that
hunting for trophies is a subsistence
use. . . .
Many people, both residents of the
state and non-residents, hunt grizzly bears
for trophies and leave the meat at the kill
site . . . But it is not a subsistence use,
and plaintiffs have contended throughout that
it is manifestly unreasonable to apply the
regulatory regime designed to govern such
trophy-hunting practices to the uses in those
places, such as Kwethluk and Anaktuvuk Pass,
where brown bears are hunted for the meat and
raw materials.6
(Footnote omitted.)
Alternatively, we uphold the superior court's
invalidation of the questioned regulations on the ground that
these regulations were adopted by the board in violation of the
Administrative Procedure Act (APA).7 Alaska Statute 16.05.255(a)
grants the board authority to "adopt regulations it considers
advisable in accordance with the APA.8 Thus, it is undisputed
that it is within the board's rule making powers to consider the
applicability and adoption of these questioned regulations to
subsistence uses, provided appropriate public notice has been
given. AS 44.62.190(a); 16.05.255; 16.05.258(b). Here Morry and
Kwethluk correctly note that no hearing was ever held regarding
the challenged regulations for consistency with the subsistence
law prior to their adoption as subsistence regulations. Given
this absence of any hearing, we conclude that the superior
court's holding invalidating these tag/fee and sealing
regulations, as subsistence regulations applicable to the taking
and use of brown/grizzly bears in the affected game management
units, should be sustained.
II. DID THE SUPERIOR COURT ERR IN USING THE "LEAST INTRUSIVE"
STANDARD?
The superior court noted that the "least intrusive"
standard must be implied as a rule of construction for the
"reasonable opportunity"language of the 1986 state subsistence
law.
The State and Wilson argue that the written words of
the subsistence law only mention "reasonable opportunity"in two
places, and in neither location does the text mention "least
intrusive." The State also points to the relevant legislative
history, and submits that, as the subsistence law was being
developed, "reasonable opportunity"was explained twice. (See
Memorandum from Senate Resources Committee Staff to Senate
Resources Committee Members (March 12, 1986); Address by Senator
Vic Fischer to the Alaska State Senate (May 9, 1986)). However,
on neither occasion was the "least intrusive"standard mentioned.
The State further argues that the "least intrusive"standard is
absent in the three logical places in the statute where the fish
and game laws deal with the regulations of subsistence hunting
and fishing.
The State contends that the superior court's reliance
on ANILCA is flawed. It bases this contention on the proposition
that although the subsistence law was enacted in part to comply
with ANILCA, "each law is a separate piece of legislation with
its own legislative history and distinct provisions." The State
argues "[t]he term that the superior court says is modified by
the 'least intrusive standard' -- the 'term reasonable
opportunity' -- does not even appear in the federal law." See 16
U.S.C.A. 3111-3126 (1985).
The State next argues that since state law is now out
of compliance with ANILCA, the state is no longer implementing
federal policy on federal "public lands." Hence, the purpose
statement of ANILCA (from which the superior court derived the
"least intrusive" standard) should not affect the state's
implementation of its own law on its own lands. The State
further argues that the "least intrusive"standard applies to the
use of land, and the use of land is addressed in a section of
ANILCA ( 3120) that is entirely separate from the sections of
ANILCA that deal with the use of subsistence fish and game -- 16
U.S.C.A. 3113-3117 (1985).
The State's final argument is that the "least
intrusive" standard would require a significant change in the
method the boards use to adopt regulations. In this regard the
State submits that since the boards are not required to provide
for a certain style of hunting and fishing, there is nothing that
can be intruded upon.
Morry and Kwethluk argue that the "least intrusive"
standard is the appropriate one for insuring board compliance
with the law. They support this position by stressing that the
subsistence law does more than merely direct the boards to take
subsistence into account in the course of making regulations.
The law mandates that those uses be given preference over all
others.
Morry and Kwethluk also assert that the State errs in
looking to the statute for the words "least intrusive", because
the key word in the statute is "preference". They submit that
the question before the superior court, and the one presented
here, is what standard the courts insist upon to insure that the
mandatory preference is in fact being accorded.
Morry and Kwethluk contend that the superior court drew
the least intrusive standard from the overall structure and
intent of the statute, from the judicial construction of the
comparable provisions of ANILCA, and from analogous areas of law
in which hunting and fishing rights are accorded a priority in
law. They emphasize that the "reasonable opportunity"that the
legislature requires is not merely some abstract opportunity; it
is, rather, a priority opportunity.
We find the State's arguments persuasive. The least
intrusive standard is not explicitly mentioned in the text of our
subsistence preference laws nor can such a standard be reasonably
implied from the fact that the subsistence law accords a
"preference"to subsistence users. As the State notes:
The subsistence law, however,
provides a preference only by giving
subsistence users 'reasonable opportunity' to
harvest the resource. If this 'reasonable
opportunity' defined according to customary
and traditional harvest levels, reasonable
expectations, and access -- cannot be
furnished because of the demands of other
user groups, then these other groups must be
cut out. This is how the priority arises,
not through Morry's elusive standard of
judicial review.
III. DID THE SUPERIOR COURT ERR IN INVALIDATING THE STATE'S
INTERPRETATION, FOLLOWING McDOWELL, THAT AS 16.05.258
PROVIDES NO STATUTORY GROUNDS FOR DISTINGUISHING BETWEEN
BENEFICIAL USERS AT THE FIRST TIER LEVEL?
The State and Wilson contend that the state subsistence
law does not authorize or give guidance to the boards of fish and
game on how to determine which individuals may engage in "first
tier" subsistence hunting and fishing. The State first advances
an historical argument based on the legislative evolution of the
subsistence statute. The State asserts that under the original
1978 subsistence law, when there was enough fish and game for all
subsistence uses, i.e., at the "first tier"of abundance, there
was no authority for the boards of fish and game to decide that
some Alaskans could be subsistence harvesters, but others could
not. Only at the second tier level, when resources declined
below a level where all subsistence uses could be satisfied, did
the board have authority to establish criteria for
differentiating between users.
The State notes that the board's attempt to
differentiate between first tier users through the imposition of
a rural/nonrural distinction failed upon review by this court.
Citing Madison v. Alaska Dept. of Fish and Game, 696 P.2d 168,
174 (Alaska 1985). The board had argued that it had statutory
authority under the "customary and traditional" phrase of AS
16.05.940(31) (formerly AS 16.05.940(23)) to define first tier
subsistence users by their area of residence. Id. In Madison we
rejected the board's contention and held:
First, the argument ignores the two-tier
structure of AS 16.05.251(b) that defines
only the second-tier subsistence users in
terms of residency. If the legislature had
intended to define the class of first-tier
general subsistence users by area of
residence, it would not have expressed that
factor with respect to only the second tier
of preferred subsistence users. Moreover,
the phrase 'customary and traditional'
modifies the word 'uses' in AS 16.05.940(23).
It does not refer to users. The 1978
subsistence law refers to 'customary users'
at only one point, when it defines the
preferred subsistence users of the second
tier with the three statutory criteria in AS
16.05.251(b).
. . . .
The 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. In addition, subsistence
use is not strictly limited to rural commun
ities. For these reasons, the board's inter
pretation of 'customary and traditional' as a
restrictive term conflicts squarely with the
legislative intent.9
When the legislature thereafter attempted to amend the 1978
subsistence law to add statutory authorization for distinctions
between individuals at the first tier this court invalidated the
rural/urban distinction as violative of sections 3, 15 and 17 of
article VIII of the Alaska Constitution.10
On remand in McDowell the superior court severed the
rural criteria from the law, but left the subsistence mandate and
priority in place. McDowell v. Collinsworth, No. 3AN-83-1592
Civil (Alaska Super., July 12, 1990). The State observes that
following McDowell, the four superior courts that have attempted
to distinguish between first tier eligibility users, have all
fallen into the trap of applying "customary and traditional" to
users not uses, inconsistent with this court's mandate in
Madison. The State contends that this interpretation doesn't
work, for
If only residents who have customarily
and traditionally used subsistence resources
can continue to harvest them in the future,
existing Alaskans who had not used
subsistence resources, as well as all future
Alaskans, would not be eligible to
participate in subsistence harvests. Surely,
this could not satisfy the common use mandate
of article 8, section 3, of the Alaska
Constitution. See Owsichek v. State, 763
P.2d 488 (Alaska 1988).
The State next argues that the present subsistence law
does not contain statutory authorization allowing the boards to
adopt criteria that will eliminate some Alaskans as eligible
first tier subsistence users. The State notes that in McDowell,
this court spoke of "individual characteristics"as a system that
may be enacted, not as a system that already exists for first
tier eligibility. 785 P.2d at 9. Moreover, the State contends
that if individual criteria were used to distinguish first tier
users, this would violate the rule known as expressio unius est
exclusio alterius. The State explains that "[t]his rule says
that to enumerate specific terms specifically excludes those
which are not enumerated." The State points out that this court
followed the reasoning of this rule in Madison when it stated:
"If the legislature had intended to define the class of first
tier general subsistence users by area of residence, it would not
have expressed that factor with respect to only the second tier
of preferred subsistence users." 696 P.2d at 174. The State
argues that "[l]ikewise, had the 1986 legislature intended to
define the class of first tier general subsistence users by both
area of residence and by individual characteristics, it would not
have expressed individual i.e., dependency, local residence and
availability of other resources, with respect to only the second
tier of preferred subsistence users." Based on these arguments,
the State concludes that the superior court erred in invalidating
the State's policy that all Alaskans are now eligible, since
McDowell, to become first tier subsistence users.
Morry and Kwethluk argue that the superior court
correctly invalidated the "all Alaskans policy." They do not
dispute that following McDowell, all Alaska residents, be they
rural, urban or suburban, are eligible to participate in
subsistence uses on lands and waters over which the state
continues to have jurisdiction. Morry and Kwethluk submit that
the issue to be resolved is whether the law (with its rural
preference provisions severed) not only makes all residents
eligible to participate in subsistence uses, but also makes them
automatically eligible to go anywhere in the state and
participate in any previously recognized local subsistence use.
Morry and Kwethluk submit that the fallacy of the
State's position is best illustrated by comparing it with the
"acknowledged meaning of the law prior to McDowell." Under the
1986 law, "all rural Alaskans"were eligible to be first tier
subsistence users. They contend that even under the 1986 law,
villagers from Kwethluk could not travel to the area of Anaktuvuk
Pass to hunt grizzly bears as subsistence hunters, or vice versa.
Morry and Kwethluk further argue that the reason why residents of
one region could not travel to another region and engage in
subsistence uses was not based on the character ("rural" or
"urban") of their respective places. Instead, it was based upon
the statutory definition of subsistence uses as "customary and
traditional uses"(AS 16.05.940(31), and upon the application of
the eight criteria (5 AAC 99.010(b)) the board adopted in 1982
for identifying such uses.11
Morry and Kwethluk assert that following McDowell, the
State modified its subsistence policy without making new findings
with respect to subsistence patterns of the previously excluded
class of urban users. They contend that because the boards have
embarked on the "all Alaskan policy,"having arbitrarily modified
the "customary and traditional use"findings of 5 AAC 99.025 so
as to make all residents automatically eligible to participate in
any recognized subsistence hunt, there are no longer enough bears
to satisfy all users.
Morry and Kwethluk next argue that the essence of Judge
Cutler's clarification orders and final judgment was that the
subsistence statute still had legal effect, even after the
unconstitutional portions had been severed. See McDowell v.
Collinsworth, No. 3AN-83-1592 Civil (Alaska Super., June 20,
1990). The board's response, however, was to express the
"contention that the courts have required action to identify
subsistence users which is impossible to comply with at this time
under these legal constraints." Policy Statement #90-18-JB
(October 28, 1990). "The boards therefore asserted that they
'have no other option than to apply the standard that all
Alaskans are now eligible subsistence users under Tier I during
the upcoming regulatory cycle.'" Id.
Contrary to the State's position, Morry and Kwethluk
contend that the "customary and traditional use"standard of the
subsistence law was intended to, and does, provide grounds for
distinguishing among different patterns of subsistence resource
harvest and disposition on the basis of local area customs and
traditions, and for differentiating between differently situated
subsistence user groups on the grounds of their respective tradi
tional use patterns (as distinguished from their places of resi
dency). Morry and Kwethluk assert that this methodology is not
unconstitutional, nor does it run afoul of McDowell, "and is in
fact the system contemplated by the law -- as the superior court
has held."
On the basis of the parties' arguments, our relevant
decisions, and upon consideration of the applicable statutory
provisions, we conclude that the superior court erred in its
determination as to who is eligible to participate in subsistence
hunting and fishing at the first tier. Simply stated, after
McDowell there are no statutory standards for determining those
individuals who are ineligible to participate in subsistence
hunting and fishing.
Prior to our decision in McDowell only rural Alaskans
were eligible to participate in subsistence hunting and fishing.
Post McDowell, and under the current subsistence statute as
impacted by McDowell, all Alaskans are eligible to participate in
subsistence hunting and fishing. Under the holding of Madison,
the board lacks the authority to adopt eligibility criteria for
first tier subsistence users absent specific statutory
authorization. As the subsistence statute presently stands (post
McDowell) there are no legislatively enacted standards of
eligibility for first tier subsistence users. Given this absence
of specific authorization, we hold that the board lacks the
authority to adopt eligibility criteria for first tier
subsistence users.
In reaching the above conclusions we have in essence
adopted the State's analysis of this issue. More particularly,
in part we adopt the following reasoning advanced by the State:
By virtue of the legislature's enactment of chapter 151 SLA 1978
(the predecessor to the current subsistence statute) two tiers of
subsistence users were created. At the first stage, if
sufficient wild resources exist, then all Alaskans were eligible
to engage in the subsistence harvests of fish and game. In the
event of a species or resource insufficiency, the board was
empowered to establish eligibility criteria based on customary
dependence, local residency and unavailability of alternative
resources. In 1980 the board adopted ten criteria in an attempt
to eliminate some Alaskans from the first tier of subsistence
users. In 1985 in Madison (as noted above) this court rejected
the board's contention that it possessed the statutory authority
under the "customary and traditional"phrase of AS 16.05.940(31)
(formerly AS 16.05.940(23) to define first tier subsistence users
by area of residence. 696 P.2d at 174. In so doing it was
stated that "the phrase 'customary and traditional' modifies the
word 'uses' in AS 16.05.940(23). It does not refer to users.
Id. After Madison all Alaskans were eligible to participate in
subsistence harvests and uses of fish and game.
In response to Madison the legislature amended the 1978
subsistence law to restrict subsistence harvests and uses at the
first tier to rural residents. Given McDowell's holding that
this rural criterion was unconstitutional, all Alaskans are once
again eligible to participate in first tier subsistence harvests
and uses. In brief, Madison contradicts any implication that the
board has statutory authority to adopt eligibility standards for
first tier subsistence users.
IV. DOES THE STATE SUBSISTENCE LAW REQUIRE THE BOARDS OF
FISHERIES AND GAME TO PROTECT THE CUSTOMARY AND TRADITIONAL
CHARACTER OF SUBSISTENCE HUNTING AND FISHING, INSOFAR AS
THESE CUSTOMS AND TRADITIONS ARE SUBJECT TO THE REGULATORY
JURISDICTION OF THE BOARDS?
The State takes the position that the subsistence
preference law does not require the boards of fish and game to
protect the customary and traditional character of subsistence
hunting and fishing. The State contends, however, that the
boards have discretionary authority to do so under their general
authority to regulate the methods and means of pursuing,
capturing, and transporting fish and game. AS 16.05.251(a)(4),
AS 16.05.255(a)(6).12
The State argues that the superior court's interpreta
tion, that the boards are required to protect the customary and
traditional character of subsistence hunting, is not supported by
the literal language of the subsistence preference law.
In AS 16.05.258(a), 'customary and tradi
tional' is used to define the fish stocks and
game populations that are subject to subsis
tence uses. Elsewhere, these words are used
to define how subsistence fish and game are
used, that is, how these resources are con
sumed after they are harvested. AS
16.05.940(31).
(Emphasis in original.) The State further contends that the
superior court failed to distinguish the taking of subsistence
resources -- which is not limited to "customary and traditional"
methods and means -- from the use of these resources after they
have been taken.
The State also contends that the superior court was
incorrect when it concluded that the subsistence law does not
just preserve an amount of fish and game for subsistence users.
It insists that AS 16.05.258 requires the boards to first
identify stocks and populations, then determine what portions can
be harvested consistent with sustained yield. The boards next
must determine how much is needed to provide a reasonable
opportunity to satisfy subsistence uses. When the law describes
the subsistence priority, it consistently refers to harvestable
portions. AS 16.05.258(c). The State concludes that in essence,
the subsistence law describes a process for determining a
quantitative amount of fish and game that will provide
subsistence users with a "reasonable opportunity" to satisfy
their customary and traditional consumptive uses. It does not
require that the boards preserve a qualitative way of harvesting
these resources.
Morry and Kwethluk counter that the subsistence law
broadly protects the customs and traditions, as well as the
needs, of subsistence users insofar as these customs and
traditions are subject to the regulatory jurisdiction of the
boards.
Morry and Kwethluk submit that it has been recognized
from the beginning that the "customary and traditional" concept
of subsistence involves more than merely what is done with the
resource after it is harvested. They support their contention by
quoting from a decision rendered by this court, contemporaneously
with the passage of the initial subsistence law:
For hundreds of years, many of the
Native people of Alaska depended on hunting
to obtain the necessities of life . . . . A
few non-Natives have adopted similar means of
livelihood . . . . Not only is the game of
prime importance in furnishing the bare
necessities of life, but subsistence hunting
is at the core of the cultural tradition of
many of these people. It has been claimed
that their very lifestyle is threatened if
they are deprived of this traditional method
of obtaining the wherewithal for existence.
State v. Tanana Valley Sportsmen's Ass'n, 583 P.2d 854, 859 n.18
(Alaska 1978); see also McDowell, 785 P.2d at 19 n.13
(Rabinowitz, J., dissenting).13
Morry and Kwethluk assert that these patterns, customs,
and traditions have been identified through application of the
eight criteria, which the legislature approved when it amended
the law. In their view these criteria describe more than mere
consumption of the resource. "[T]hey appear to attempt, at
least, to incorporate most aspects of use, including those that
take place before, during and after harvest, such as handing down
hunting skills and values, cultural and social importance,
seasonal patterns, and the like."
Morry and Kwethluk further contend that this court
previously struck down a similar argument by the State, designed
to manipulate the term "customary and traditional":
The legislative history indicates that
the legislature intended to protect
subsistence use, not limit it. The words
"customary and traditional" serve as
guidelines to recognize historical
subsistence use by individuals, both [N]ative
and non-[N]ative . . . . [T]he board's
interpretation of 'customary and traditional'
as a restrictive term conflicts squarely with
the legislative intent.
Madison, 696 P.2d at 176 (footnote omitted).
Based on the above arguments, Morry and Kwethluk submit
that the superior court's remand instructions directing the board
of game to afford reasonable regulatory recognition and
protection for the customs and traditions of the people of
Kwethluk and Anaktuvuk Pass, in connection with their harvest and
utilization of brown/grizzly bears should be affirmed.
We agree with the State's analysis of this issue and
with its position that "[c]learly the boards may adopt
regulations that recognize the needs, customs, and traditions of
Alaska residents."14 (Emphasis in original.) Our holding is not
to be taken as a direction to the boards that they should not
consider traditional patterns and methods of taking fish and game
for subsistence purposes in their formulation of appropriate
subsistence regulations. Analysis of the applicable statutory
provisions leads us to the conclusion that the boards have the
discretion, but are not mandated, to take into consideration the
traditional and customary methods of subsistence takings in their
formulation of subsistence regulations. Of controlling
significance here is the fact that under AS 16.05.940(30) the
terms "customary and traditional"define how fish and game are
used, not how they are harvested, for subsistence purposes.15
CONCLUSION
In light of the above we AFFIRM the superior court's
invalidation of 5 AAC 92.012(c) (brown bear tag fee requirement)
and 5 AAC 92.165 (bear sealing requirement) as subsistence
regulations. We REVERSE the superior court's holding that the
boards' All Alaskans policy for first tier eligibility is
invalid. We REVERSE the superior court's adoption of a "least
intrusive standard", and REVERSE the superior court's holding
that the boards must take into consideration customary and
traditional patterns and methods of harvesting game and fish for
subsistence purposes in formulating subsistence regulations.
Given these holdings it follows that the superior
court's orders establishing tag limits and new reporting
requirements for brown bear hunts in the affected areas are
VACATED. The matter is REMANDED to the superior court with
directions to REMAND to the board for the purpose of promulgating
appropriate subsistence regulations in accordance with the
procedural requirements of the Administrative Procedures Act.
AFFIRMED in part, REVERSED in part, and REMANDED to the
superior court with directions to REMAND the matter to the board
for further proceedings consistent with this opinion.16
_______________________________
1. The penalty for violation of these state regulations is
a misdemeanor conviction punishable by a "fine of not more than
$1,000, or by imprisonment for not more than six months, or
both." AS 16.05.430(a). The regulations provide that these
penalties can be imposed on a strict liability theory --
"regardless of [the] person's intent." 5 AAC 92.002.
2. The superior court drew that standard from comparable
provisions of ANILCA, and from the "customary and traditional
use"standard of the state-law definition of subsistence uses, AS
16.05.940(31).
3. Both parties agree that issues concerning the
interpretation of Alaska's subsistence laws are reviewable de
novo.
The "arbitrary, unreasonable, and abuse of discretion"
standard is applied to cases where the validity of a regulation
is challenged, i.e., to cases in which the issue concerns the
agency's exercise of its quasi-legislative authority. Kelly v.
Zamarello, 486 P.2d 906 (Alaska 1971). As originally set forth
in Kelly, 486 P.2d at 911, and later applied in Kenai Peninsula
Fisherman's Co-op. Ass'n, v. State, 628 P.2d 897, 906 (Alaska
1981), this Court applies a test which involves a four-fold
inquiry: was the regulation adopted in accordance with APA
procedures; is the regulation within the discretion vested in the
agency by the legislature; is the regulation consistent with the
statute and reasonably necessary to its purpose; is the
regulation reasonable and not arbitrary. Kenai, 628 P.2d at 906.
The superior court's grant of remedial relief is
reviewed under the abuse of discretion standard. Peter Pan
Seafoods, Inc. v. Stepanoff, 650 P.2d 375 (Alaska 1982). "Absent
a definite and firm conviction that the judge made a mistake, we
will not overturn a decision left to the discretion of the trial
court." City of Kenai v. Ferguson, 732 P.2d 184, 190 (Alaska
1987).
4. Additionally, Morry and Kwethluk insist that if the
mandate of 258(c), that the board's "regulations shall provide
a reasonable opportunity to satisfy the subsistence uses," is
anything more than meaningless, then a regulation limiting
subsistence uses to "one bear every four years"must fall.
5. In support of this contention they quote Johns v.
Commercial Fisheries Entry Comm'n, 758 P.2d 1256, 1261 (Alaska
1988) which explained:
[W]hen an agency promulgates a
regulation, the record should at least
explain the reasons for the agency's action.
This is necessary so that we can meaningfully
fulfill our statutory and constitutional
review functions. Where the Administrative
Procedure Act is followed, such a record is
likely to exist -- especially if the agency
position is expressed at the hearing required
under AS 44.62.210(a).
6. To be valid a regulation must be consistent with the
authorizing statute and reasonably necessary to carry out the
statute's purpose. Trustees for Alaska v. State, DNR, 795 P.2d
805, 812 (Alaska 1990).
Compare Justice Compton's dissent in State v. Eluska,
724 P.2d 514, 518 (Alaska 1986) where he states:
As indicated, 255(b) grants the right
to subsistence hunt and requires the board to
adopt separate regulations. The general
hunting regulations are vague when read in
light of 255(b) since they do not cover
subsistence uses. . . . (Footnote omitted.)
7. We have held that the board "is required to follow APA
procedures where adopting regulations pursuant to its statutorily
delegated authority." Kenai Peninsula Fisherman's Co-op. Ass'n,
Inc. v. State, 628 P.2d 897, 904 (Alaska 1981).
8. See also, AS 16.05.094(6) which requires the Division of
Subsistence, Department of Fish and Game to "make recommendations
to the Board of Game and the Board of Fisheries regarding
adoption, amendment and repeal of regulations affecting
subsistence hunting and fishing."
9. Madison, 696 P.2d at 174, 176.
10. McDowell v. State, 785 P.2d 1, 9 (Alaska 1990). In so
holding we noted:
The conclusion we have reached does
not mean that everyone can engage in
subsistence hunting or fishing. We do not
imply that the constitution bars all methods
of exclusion where exclusion is required for
species protection reasons. We hold only
that the residency criterion used in the 1986
act which conclusively excludes all urban
residents from subsistence hunting and
fishing regardless of their individual
characteristics is unconstitutional.
We are not called upon in this case
to rule on what selection criteria might be
constitutional. It seems appropriate, how
ever, to note that any system which closes
participation to some, but not all,
applicants will necessarily create a tension
with article VIII. In such cases, assuming
that the exclusionary criterion is not per se
impermissible, our decisions suggest that
demanding scrutiny is appropriate.
11. Morry and Kwethluk stress that application of the eight
criteria resulted in the determination, for example, that the
residents of Kwethluk (located in GMU 18) were eligible to hunt
brown bears for subsistence purposes only in nearby GMUs 17(A),
17(B), 18, 19(A) and 19(B). See 5 AAC 99.025(2), July 1991
Cumulative Supp. at 243-44. Similarly, Anaktuvuk Pass residents
(located just within the northern boundary of GMU 24) were
eligible to subsistence hunt brown bears only in nearby GMUs 24
and 26. Id. at 244.
12. The State claims it has used this discretionary
authority to allow traditional harvesting practices. For
example, 5 AAC 92.080(4) and 5 AAC 92.080(5) allow hunters in GMU
23 to use a motor-driven boat and rimfire weapons to take
swimming caribou. 5 AAC 01.320(i) allows herring roe on kelp in
Bristol Bay to be taken by hand picking and hand operated rakes.
13. Morry and Kwethluk also submit that their position is
supported by a Subsistence Position Paper, the product of
discussions between ADF&G and the Department of Law, which
considered definitions of "custom"and "tradition"in the context
of the statute, and concluded as follows:
It is suggested that it is the historic
use pattern that is to be accorded a priority
in regulation. The use pattern for Tier I is
made up of a number of elements needing
consideration (e.g., areas, times, methods
and means, species, stocks, productivity,
efficiency, and so on). Evidence on these
elements should be considered by the boards.
ADF&G Tech. Paper No. 66 (November 1980) (emphasis in original).
They also rely on certain studies that have been done
documenting that "customary and traditional"uses of fish and
game encompass broad patterns of activities. See e.g. Wolfe &
Ellanna, Resource Use and Socioeconomic Systems: Case Studies of
Fishing and Hunting in Alaskan Communities, ADF&G Tech. Paper No.
61 (March 1983), cited and quoted in McDowell, 785 P.2d at 5.
14. In its opening brief the State elaborated in somewhat
greater detail as follows:
Although the subsistence law does not
require the Boards of Fisheries and Game to
protect the character of subsistence hunting
and fishing, this does not mean they are
prohibited from doing so. The boards have
general authority to regulate the methods and
means of pursuing, capturing, and
transporting fish and game. AS
16.05.251(a)(4), AS 16.05.255(a)(6). They
have used this authority, where it is appro
priate, to allow traditional harvesting
practices. For example, 5 AAC 92.080(4) and
5 AAC 92.080(5) allow hunters in Game Manage
ment Unit 23 to use a motor-driven boat and
rimfire weapons to take swimming caribou. 5
AAC 01.320(i) allows herring roe on kelp in
Bristol Bay to be taken by hand picking and
hand operated rakes. While the boards have
authority to provide for certain harvest
methods, they are not compelled to do so.
15. The author of this opinion and Justice Compton disagree
with the court's resolution of this issue for the reasons
expressed in the dissent in State v. Kluti Kaah Native Village of
Copper Center, ___ P.2d ___, Op. No. 3839 (Alaska, May 8, 1992).
There we concluded that the provisions of AS 16.05.940(29) and
(30) should be construed to require the boards to consider
traditional and customary means and patterns of hunting and
fishing in fashioning subsistence regulations.
16. We consider it unnecessary to address any of the
remaining issues raised in the appeal and cross-appeal.
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