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Sport Fishing Assn. v. Dept. of Fish and Game (1/14/94), 866 P 2d 1314
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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
TONGASS SPORT FISHING ASSOCIATION; )
KETCHIKAN MARINE CHARTERS ) Supreme Court No. S-5202
ASSOCIATION; SOUTHEASTERN LODGE & )
RESORT OWNERS ASSOCIATION; SITKA ) Superior Court No.
CHARTER BOAT OWNERS ASSOCIATION; ) 1JU-92-938 CIVIL
PETERSBURG CHARTER BOAT )
ASSOCIATION; SITKA SPORTSMAN'S ) O P I N I O N
ASSOCIATION; JUNEAU CHARTER BOAT )
OPERATOR'S ASSOCIATION; ALASKA ) [No. 4043, January 14,
1994]
STATE COUNCIL OF TROUT UNLIMITED; )
and ALASKA SPORT FISHING )
FEDERATION, )
)
Appellants, )
)
v. )
)
STATE OF ALASKA; ALASKA BOARD OF )
FISHERIES; ALASKA DEPARTMENT OF )
FISH & GAME; and CARL L. ROSIER, )
COMMISSIONER OF FISH & GAME, )
)
Appellees. )
)
ALASKA TROLLERS ASSOCIATION, )
)
Appellee/Intervenor. )
)
___________________________________)
Appeal from the Superior Court of the
State of Alaska, First Judicial District,
Juneau,
Walter L. Carpeneti, Judge.
Appearances: James R. Blair, Bliss
Riordan, Fairbanks, for Appellants. John P.
Griffin, Assistant Attorney General, Charles
E. Cole, Attorney General, Juneau, for
Appellees. Bruce B. Weyhrauch, Faulkner,
Banfield, Doogan & Holmes, Juneau, for
Appellee/Intervenor.
Before: Moore, Chief Justice,
Rabinowitz, Burke, Matthews, and Compton,
Justices.
RABINOWITZ, Justice.
This appeal concerns a regulation promulgated by the
Alaska Board of Fisheries (the Board) allocating the number of
chinook (king) salmon that may be harvested by commercial seiners
and gillnetters, commercial trollers, and sport fishers in
southeast Alaska. This appeal presents three questions. First,
does the allocative regulation promulgated by the Board violate
the policies expressed in Article VIII of the Alaska
Constitution? Second, in promulgating this regulation, did the
Board consider the relevant criteria and take a "hard look" at
the salient problems involved? Third, is a decisional document
supporting the regulation required, and if not, is the record
sufficient to support the Board's adoption of the regulation? We
determine that the superior court answered all three of these
questions correctly, and affirm its grant of summary judgment to
the Board.
I. BACKGROUND
The Pacific Salmon Treaty took effect in 1985. See
Fisheries: Pacific Salmon, Treaty Between the United States of
America and Canada, Jan. 28, 1985;4 16 U.S.C. 3631-3644.
Since its enactment the number of chinook salmon that can be
harvested in southeast Alaska by commercial net fishers (seiners
and gillnetters), commercial trollers, and sport fishers, has
been determined by the Pacific Salmon Commission under the terms
of the treaty. For 1991 and 1992 the Commission set a harvest
ceiling of 273,000 and 263,000 chinooks respectively for all user
groups. Alaska Dep't of Fish and Game, Regional Information
Report No. 1J92-01, Chinook Salmon Fisheries and Harvests in
Southeast Alaska 2-3 (1992).5
The Alaska Board of Fisheries determines allocations
among the user groups under the chinook harvest ceilings set by
the Pacific Salmon Commission. Twenty thousand chinook a season
are allocated to the commercial net fishers. 5 Alaska
Administrative Code (AAC) 33.365(b)(10). Prior to 1992 sport
fishers were able to harvest chinook subject only to bag and size
limitations. The remaining chinook, under the provisions of the
Pacific Salmon Treaty, were available for harvest by commercial
trollers.6
Alaska Department of Fish and Game data show that the
sport fishers' catch of chinook gradually increased until the
Board imposed ceilings.7 This increased sport harvest in
combination with lower Treaty limits reduced the number of
chinook available to southeast commercial trollers. From 1975 to
1979 the average harvest of Treaty chinook by commercial trollers
was approximately 300,000 fish. From 1985 to 1991, it was less
than 225,000 fish.8
In November 1991, the Alaska Trollers Association
requested that the Board amend 5 AAC 33.365 (the Southeast Alaska-
Yakutat Chinook and Coho Salmon Troll Fisheries Management Plan)
to allocate a percentage of the Treaty chinook salmon quota to
commercial trollers. After four days of public hearings and
lengthy deliberations, the Board voted to allocate Treaty chinook
between the commercial troll and sport fisheries. After
deducting the 20,000 chinook allocated to the commercial net
fishers, 83 percent of the remainder was allocated to the troll
fishery and 17 percent to the sport fishery. Subsequently the
Board adopted regulations implementing its allocation decision:
(a) The department shall manage
the Southeast Alaska Area and Yakutat Area
chinook salmon sport fisheries in marine
waters so that these fisheries together
harvest not more than 17 percent of the
annual harvest ceiling, specified by the
Pacific Salmon Commission, after the
commercial net harvest specified in 5 AAC
33.365(b)(10) is subtracted from the total
ceiling. The management plan in this section
provides the department with guidelines for
preseason and in-season adjustment of sport
fishery harvest levels in order to not exceed
the 17 percent ceiling.
(b) The objects of the management
plan in this section are to allow uninter
rupted sport fishing in marine waters for
chinook salmon, while not exceeding the 17
percent ceiling established in (a) of this
section, and to minimize regulatory
restrictions on anglers not fishing from a
charter vessel, who harvest chinook salmon at
a lower catch-per-unit of effort than do
anglers fishing from a charter vessel.
5 AAC 46.055(a)-(b).
Thereafter, the Tongass Sport Fishing Association,
together with other sport fishing organizations, associations of
charter-boat operators, and an association of lodge and resort
owners (collectively Tongass) brought suit challenging the
Board's regulation.9 On cross-motions for summary judgment the
superior court ruled that (1) the Board did not violate the
Administrative Procedure Act in adopting the questioned
regulation; (2) the Board acted within its statutory powers
regarding conservation, development, and utilization of fishery
resources; (3) the Board took a hard look at all relevant factors
in making the allocation; (4) the allocation regulation does not
violate article VIII of the Alaska Constitution; and (5) a
decisional document was not necessary because the administrative
record adequately set forth the basis of the Board's allocation
decision. Tongass appeals, challenging the last three of those
rulings.
II. DOES THE BOARD'S ALLOCATION REGULATION VIOLATE THE POLICIES
EXPRESSED IN ARTICLE VIII OF THE ALASKA CONSTITUTION?10
Tongass argues that article VIII of the Alaska
Constitution, particularly the "common use"clause of section 3
and the "no exclusive right of fishery"clause of section 15,
embodies a clear policy in favor of general public access to the
natural resources of the state, with no special privilege
accorded to any individual group.11 Tongass further argues that
under the public trust doctrine the state has a fiduciary duty to
manage the resources of Alaska for the benefit of all of the
people.12 Given these constitutional policies, Tongass takes the
position that allocating a fixed quota of chinook to the trollers
creates an unconstitutional "special privilege."13 In Tongass's
view, if the regulation is allowed to stand, "it will severely
impact the ability of the vast majority of members of the general
public to fish for and catch king salmon."
The Board of Fisheries was created for the purposes of
conservation and development of the state's fishery resources.
AS 16.05.221(a). In Kenai Peninsula Fisherman's Cooperative
Ass'n v. State, 628 P.2d 897, 903 (Alaska 1981), we held that
concepts of "conserving" and "developing" fishery resources
necessarily include the concepts of managed utilization and thus
allocation of these resources. See also Alaska Fish Spotters v.
State, Dep't of Fish & Game, 838 P.2d 798, 800 (Alaska 1992). In
Meier v. State, Board of Fisheries, 739 P.2d 172, 174 (Alaska
1987), we stated that the Board's "duty to conserve and develop
fishery resources implies a concomitant power to allocate fishery
resources among competing users." We also held that the Board's
authority encompasses the power to allocate a fishery resource
between two competing subgroups of commercial users. Id. at 174
(upholding Board allocation of salmon between setnet and driftnet
fishers). Subsequently, in Gilbert v. State, Department of Fish
& Game, 803 P.2d 391, 399 (Alaska 1990), we recognized that the
Board possessed authority to allocate among different fisheries.
We have held that the "common use"clause of article
VIII, section 3, the "no exclusive right of fishery" clause of
section 15, and the "uniform application"clause of section 17
are not implicated unless limits are placed on the admission to
resource user groups. McDowell v. State, 785 P.2d 1, 8 & n.14
(Alaska 1989); see also Owsichek v. State, Guide Licensing &
Control Bd., 763 P.2d 488, 492 (Alaska 1988). Article VIII
limitations on the state's power to restrict access to natural
resource user groups do not apply to the state's authority to
allocate fishery resources among sport, commercial, and
subsistence users.14 In Kenai Peninsula, we said:
While section 15 does prohibit granting
monopoly fishing rights, that section was not
meant to prohibit differential treatment of
such diverse user groups as commercial,
sports, and subsistence fishermen. To
conclude that, because a certain species is
made available for sport fishing in a given
area, commercial fishing of the same species
in the same area must also be allowed, would
be to go far beyond the purpose of the
section.
628 P.2d at 904.
On the basis of these authorities we conclude that the
Board possessed the authority to allocate Treaty chinook between
sport and commercial users. The Board's allocation decision was
not a limitation on admission to a particular user group.
Therefore, we hold that the regulation is not violative of the
"common use" or "no exclusive right of fishery" clauses of
article VIII of the Alaska Constitution.
Furthermore, the regulation does not conflict with the
"uniform application"clause of article VIII. Since sport and
commercial users are not similarly situated, the uniform
application clause is not implicated. Gilbert, 803 P.2d at 399.
III. IN PROMULGATING THE REGULATION, DID THE BOARD CONSIDER
RELEVANT CRITERIA AND TAKE A "HARD LOOK"AT THE CONFLICTING
FACTORS IN MAKING ITS ALLOCATION DECISION?
The legislature has authorized the Board to adopt
regulations that the Board considers advisable for "regulating
commercial, sport, guided sport, subsistence, and personal use
fishing as needed for the conservation, development, and
utilization of fisheries." AS 16.05.251(a)(12). The legislature
also directed the Board to establish criteria for the allocation
of fishery resources among personal use, sport, and commercial
fishing. AS 16.05.251(e).15 The legislature further provided
that such criteria may include factors such as
(1) the history of each personal
use, sport, guided sport, and commercial
fishery;
(2) the number of residents and
nonresidents who have participated in
each fishery in the past and the number
of residents and nonresidents who can
reasonably be expected to participate in
the future;
(3) the importance of each fishery
for providing residents the opportunity
to obtain fish for personal and family
consumption;
(4) the availability of
alternative fisheries resources;
(5) the importance of each fishery
to the economy of the state;
(6) the importance of each fishery
to the economy of the region and local
area in which the fishery is located;
(7) the importance of each fishery
in providing recreational opportunities
for residents and nonresidents.
Id. In response to this legislation the Board adopted 5 AAC
75.017:
Before adopting regulations that
allocate fish among personal use, sport, and
commercial fisheries, the board will, as
appropriate to particular allocation
decisions, consider factors such as those set
out in AS 16.05.251(e).
(Emphasis added).
Tongass asserts that the Board failed to follow the
criteria set out in AS 16.05.251(e) and 5 AAC 75.017 in adopting
its allocational regulation. The essence of Tongass's argument
is that although the Board members were aware of the relevant
criteria, and some members did mention criteria from time to
time, there is no indication in the record that the Board ever
weighed the criteria in making its allocation decision. As
Tongass notes, an agency must at least consider all relevant
criteria. See State, Dep't of Transp. & Pub. Facilities v. 0.644
Acres, More or Less, 613 P.2d 829, 833 n.13 (Alaska 1980).
Upon its review of the transcript of the four-day
hearing and the Board's deliberations, the superior court found
that the Board had considered the relevant statutory criteria.
Review of the record leads us to the same conclusion. The record
shows that during a full day of deliberations following the
hearings the Board did consider the relevant criteria before
reaching its allocation decision.
In making its allocation decision the Board was
required to take a "hard look"at the salient problems and to
engage in reasoned decisionmaking. Gilbert, 803 P.2d at 398;
Trustees for Alaska v. State, Dep't of Natural Resources, 795
P.2d 805, 809 (Alaska 1990); Alaska Survival v. State, Dep't of
Natural Resources, 723 P.2d 1281, 1287 (Alaska 1986). Our review
of the record persuades us that the Board did take a hard look at
the salient problems affecting the southeast Treaty chinook
harvests and engaged in reasoned decisionmaking in reaching its
allocation decision. There is no evidence that the Board's
allocation was unreasonable or arbitrary. It is not our function
to examine the wisdom of the allocation regulation. Gilbert, 803
P.2d at 397; Meier, 739 P.2d at 174.
IV. IS A DECISIONAL DOCUMENT REQUIRED? IF NOT, IS THE RECORD
SUFFICIENT TO SUPPORT THE BOARD'S ALLOCATION DECISION?
Tongass asks us to invalidate the Board's allocation
regulation because the Board did not publish a decisional
document in its support. Effective judicial review requires that
an agency adequately discuss the basis of a regulation:
For a court to determine that an agency
acted within its authority in adopting a
regulation, it is vital that the agency
clearly voice the grounds upon which the
regulations was based in its discussions of
the regulations or in a document articulating
its decision.
Alaska Fish Spotters Ass'n v. State, Dep't of Fish & Game, 838
P.2d 798, 801 (Alaska 1992).
We have expressly held that decisional documents are
not required in the circumstance where an agency exercises its
rulemaking powers. Johns v. Commercial Fisheries Entry Comm'n,
758 P.2d 1256, 1260-61 (Alaska 1988); see also State v. Hebert,
743 P.2d 392, 396-97 (Alaska App. 1987). We are not persuaded by
Tongass's arguments that we should modify Johns to require a
decisional document from an administrative agency when it
exercises its (quasi-legislative) rulemaking authority. As noted
in the previous section, the record in this case indicates that
the Board took a hard look at the relevant and often competing
salient factors in making its allocation decision and that its
decision reflects reasoned decisionmaking. Adoption of a
decisional document requirement is unnecessary and would impose
significant burdens upon the Board.16
The superior court's grant of summary judgment to the
state is AFFIRMED.
_______________________________
4 See generally Thomas C. Jensen, The United States-
Canada Pacific Salmon Interception Treaty: An Historical and
Legal Overview, 16 Envtl. L. 363, 366 n.1 (1986).
5 Alaska hatchery chinook may be taken in addition to
these base ceilings. Cumulative deviations from the harvest
ceilings are limited to 7.5% of the ceiling or approximately
20,000 fish. When cumulative deviations exceed this management
range, chinook harvests must be reduced the following year to
bring the cumulative deviation back within the management range.
Id.
6 The commercial trollers were limited each year to what
was left after subtracting from the Treaty's annual harvest
ceiling the following: (1) the allocation to the net fishermen;
(2) a pre-season projection of what sport fishermen would catch
that year; and (3) the amount, if any, by which the previous
year's harvest of chinook by all user groups exceeded that year's
Treaty ceiling.
7 The sport fishers' harvest of Treaty chinook--chinook
not raised in hatcheries--grew steadily during this time. In
1969, it was 14,000. Between 1973 and 1979, it hovered between
16,000 and 17,000. For most years from 1980 to 1988, it was
approximately 20,000. Thereafter, it increased more rapidly. It
was 24,720 in 1989, 34,588 in 1990, and 41,700 in 1991.
8 Trollers harvested 88-90% of the total Treaty chinook
catch prior to 1980. The trollers' harvest from 1989 through
1992 was less than 80% of the total catch.
9 The Alaska Trollers Association intervened in support
of the Board's regulation.
10 Whether a regulation is consistent with the Alaska
Constitution is a question of law, which we review de novo. See,
e.g., Sonneman v. Knight, 790 P.2d 702, 704 (Alaska 1990).
"[S]ummary judgment may be granted only when there is no genuine
issue of material fact and the moving party is entitled to
judgment as a matter of law. Thus, we review de novo an order
granting summary judgment." Gilbert v. State, Dep't of Fish &
Game, 803 P.2d 391, 394 (Alaska 1990) (citation omitted).
11 Article VIII, section 1 of the Alaska Constitution
provides:
It is the policy of the State to
encourage the settlement of its land and the
development of its resources by making them
available for maximum use consistent with the
public interest.
Article VIII, section 2 provides:
The legislature shall provide for
the utilization, development, and
conservation of all natural resources
belonging to the State, including land and
waters, for the maximum benefit of its
people.
Article VIII, section 3 provides:
Wherever occurring in their natural
state, fish, wildlife, and waters are
reserved to the people for common use.
Article VIII, section 4 provides:
Fish, forests, wildlife,
grasslands, and all other replenishable
resources belonging to the State shall be
utilized, developed, and maintained on the
sustained yield principle, subject to
preferences among beneficial uses.
Article VIII, section 15 provides:
No exclusive right or special
privilege of fishery shall be created or
authorized in the natural waters of the
State. This section does not restrict the
power of the State to limit entry into any
fishery for purposes of resource
conservation, to prevent economic distress
among fishermen and those dependent upon them
for a livelihood and to promote the efficient
development of aquaculture in the State.
Article VIII, section 17 provides:
Laws and regulations governing the
use or disposal of natural resources shall
apply equally to all persons similarly
situated with reference to the subject matter
and purpose to be served by the law or
regulation.
12 See Owsichek v. State, Guide Licensing & Control Bd.,
763 P.2d 488, 495 (Alaska 1988); CWC Fisheries, Inc. v. Bunker,
755 P.2d 1115, 1117-18 (Alaska 1988).
13 Troll fleet participation is controlled through the
limited entry program. AS 16.43.010-.990; see Rutter v. State,
668 P.2d 1343 (Alaska 1983); State v. Ostrosky, 667 P.2d 1184
(Alaska 1983), appeal dismissed sub nom. Ostrosky v. Alaska, 467
U.S. 1201 (1984).
14 In McDowell we said, "The state may, indeed must, make
allocation decisions between sport, commercial, and subsistence
users. That authority, however, does not imply a power to limit
admission to a user group." 785 P.2d at 8.
15 Alaska Statute 16.05.251(e) provides in part:
The Board of Fisheries may allocate
fishery resources among personal use, sport,
guided sport, and commercial fisheries. The
board shall adopt criteria for the allocation
of fishery resources and shall use the
criteria as appropriate to particular
allocational decisions.
16 As the state notes:
These Boards are citizen boards, whose
members generally pursue full-time careers in
addition to their agency obligations; the
number of meetings they can hold and
proposals they can consider are limited.
Nevertheless, in its 1990-91 meeting cycle,
the Board of Fisheries met for 58 days and
considered approximately 393 proposals to
change or adopt new regulations. Current
limitations in staff, in agency budgets, and
in the time commitments of lay Board members
make it impossible to reduce every one of
these hundreds of decisions to a written
"findings and conclusions"document.
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