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Morry v. Wilson and State of Alaska (4/29/94), 872 P 2d 1209
NOTICE: This opinion is subject to formal correction
before publication in the Pacific Reporter. Readers
are requested to bring errors to the attention of the
Clerk of the Appellate Courts, 303 K Street, Anchorage,
THE SUPREME COURT OF THE STATE OF ALASKA
RILEY T. MORRY, )
) Supreme Court No. S-4686
) Superior Court No.
v. ) 2BA-87-83 CI
STATE OF ALASKA, and DON ) O P I N I O N
WILSON, individually and in )
his capacity as a Fish & ) [No. 4076 - April 29, 1994]
Wildlife Trooper, )
Appeal from the Superior Court of the
State of Alaska, Second Judicial District,
Michael I. Jeffery, Judge.
Appearances: William E. Caldwell,
Alaska Legal Services Corp., Fairbanks, and
Carol H. Daniel, Alaska Legal Services Corp.,
Anchorage, for Appellant. Randy M. Olsen,
Assistant Attorney General, Fairbanks, and
Charles E. Cole, Attorney General, Juneau,
Before: Moore, Chief Justice,
Rabinowitz, Matthews and Compton, Justices.
This appeal presents the question whether an individual
has a claim for damages in tort against the State, arising out of
the State's enforcement of regulations that subsequently were
This appeal is a companion to the appeal in State v.
Morry, 836 P.2d 358 (Alaska 1992) (Morry I). In Morry I we held
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'. Given this command, we conclude
that Morry['s] . . . argument, that these
trophy hunting regulations do not constitute
compliance with the requirement of AS
16.05.258(c) that the Board of Game adopt
subsistence hunting regulations for the game
in question, is persuasive.
Id. at 363 (alterations in original) (citation omitted).
Riley Morry has lived in Anaktuvuk Pass for roughly
fifty years. He hunts for subsistence purposes, in order to feed
his wife and five children. In June 1984 Morry purchased a
brown/grizzly bear tag and a "Gates of the Arctic National Park
Grizzly Bear Hunting Permit No. 6"from Raymond Paneak, the agent
in the village for the Alaska Department of Fish and Game. The
locking tag and the receipt for the tag do not show an expiration
date. The Gates of the Arctic permit was good for the regulatory
year July 1, 1984 through June 30, 1985. Morry's locking tag
number was listed on his permit, and Morry possessed the required
state hunting license. Morry's affidavit gives the following
description of events:
In May 1985 Patrick Mekiana and I
went hunting and fishing. We camped at
Little Chandler Lake, northwest of the
Village, and spent a day or two ice fishing.
Then we went hunting one day and found a
grizzly bear near the headwaters of the
Kiruktagiak River, to the west of Little
Chandler Lake. I shot the bear and we
returned to our camp with the bear by the end
of the day. . . . This place [where I shot
the bear] is a few miles southwest of a
traditional campsite which I and others in
the Village have used in the past. Both the
place where I shot the bear and the campsite
are within the Gates of the Arctic National
The next day Patrick and I returned
to the Village with the bear. We completely
distributed the meat to various households
around the Village. I notified Raymond
Paneak that I had taken a bear, and he came
over to my house and sealed the bear hide
with a metal tag. He did not seal the skull
because it needed cleaning. Later Grant
Spearman asked me if I would donate the skull
to the school because they were studying
animals and collecting specimens. I gave the
skull to Grant. . . . I believe the date [of
the sealing certificate] is May 16, 1985.
When Trooper Don Wilson came around
investigating my bear harvest, I believe that
he learned all of these facts from me and
Raymond Paneak. Don Wilson did not tell me
that he was going to charge me with any game
violations, or even that he thought that I
had committed any violations. I was
completely surprised when I was served with
the charges later that summer.
After learning of Morry's bear harvest, Trooper Don
Wilson initiated a criminal investigation. Wilson then filed a
criminal complaint against Morry for failure to comply with the
regulations. The state later voluntarily dismissed the criminal
charges against Morry.
Morry then filed suit in superior court for declaratory
relief and damages against Trooper Wilson and the State of
Alaska. On cross motions for summary judgment the superior court
invalidated the regulations under which Morry had been charged
and dismissed all of Morry's tort claims against the State and
Trooper Wilson.2 The State and Trooper Wilson appealed from the
superior court's holding that the regulations in question were
invalid, and Morry appealed from the superior court's dismissal
of his tort claims against the State and Trooper Wilson.
These appeals were bifurcated, and as indicated above,
in Morry I we affirmed the superior court's invalidation of 5
Alaska Administrative Code (AAC) 92.012(c) (the brown bear tag
fee requirement) and 5 AAC 92.165 (the bear sealing requirement)
as subsistence regulations. We now address the merits of the
superior court's dismissal of Morry's tort claim for compensatory
damages against the State based on the State's enforcement of 5
AAC 92.012(c) and 5 AAC 92.165.3
II. THE DISCRETIONARY FUNCTION EXCEPTION OF THE TORT CLAIMS ACT
PROVIDES IMMUNITY TO THE STATE OF ALASKA FROM MORRY'S CLAIM
FOR DAMAGES IN TORT ARISING OUT OF THE STATE'S ENFORCEMENT
OF REGULATIONS THAT WERE DETERMINED TO BE INVALID4
The Alaska Tort Claims Act provides:
A person . . . having a . . . tort claim
against the state may bring an action against
the state . . . . However, an action may not
be brought under this section if the claim
(1) is an action for tort, and is
based upon an act or omission of an employee
of the state, exercising due care, in the
execution of a statute or regulation, whether
or not the statute or regulation is valid; or
is an action for tort, and based upon the
exercise or performance or the failure to
exercise or perform a discretionary function
or duty on the part of a state agency or
employee of the state, whether or not the
discretion involved is abused . . . .
In Owsichek v. State, Guide Licensing & Control Bd.,
763 P.2d 488 (Alaska 1988), Owsichek, a hunting guide, sought a
declaration that the Guide Licensing and Control Board's
assignment of exclusive guide areas was unconstitutional. Id. at
491. In addition to declaratory relief, Owsichek sought damages
against the State. Owsichek based his claim for damages in part
on allegations that the Board acted without authority in
initially promulgating the exclusive guide area regulations and
that the regulations failed to comply with relevant legislation
that was subsequently enacted.6 See id.
We rejected Owsichek's claim for damages:
We need not decide whether these
allegations are true. Even if the Board
acted without authority or failed to comply
with statutory standards, it is immune from
suit under the discretionary function
exception provided for in the Tort Claims
Act, as interpreted by our prior decisions.
. . . .
The [exclusive guide area] program
was a major policy initiative of the GLCB.
Therefore, even if the Board acted in excess
of its authority or failed to comply with the
requirements of the statute, it is immune
from suit under the discretionary function
exception provided for in AS 09.50.250.
Id. at 498-99 (footnote omitted).7
Morry contends that Owsichek is inapplicable on two
grounds. First, Morry argues that the legislature's enactment of
former AS 16.05.255(b) imposed a non-discretionary duty on the
Board of Game to adopt subsistence hunting regulations for each
animal population for which a harvestable portion is determined
to exist.8 More particularly, he asserts that the discretionary
function exception of the second clause of AS 09.50.250(1) is
unavailable to the State for the "simple reason that the duty was
not discretionary." In short, he contends that the legislature
alone formulated policy, by mandating the promulgation of
subsistence hunting regulations, and that the Board had no
discretion other than to carry out this ministerial duty.9
Second, Morry urges us to reject the State's contention that the
legislature gave the Board discretion to refuse to adopt
subsistence hunting regulations.
We are not persuaded by Morry's arguments and therefore
hold that the discretionary function exception of AS
09.50.250(1), as interpreted in Owsichek, provides immunity to
the State from Morry's tort claim for compensatory damages based
on the State's failure to adopt subsistence brown bear hunting
regulations. We reach this conclusion for the following reasons.
Former AS 16.05.255(b) provided in part:
The Board of Game shall adopt
regulations in accordance with the
Administrative Procedure Act (AS 44.62)
permitting the taking of game for subsistence
uses unless the board determines, in
accordance with the Administrative Procedure
Act, that adoption of the regulations will
jeopardize or interfere with the maintenance
of game resources on a sustained-yield basis.
Whenever it is necessary to restrict the
taking of game to assure the maintenance of
game resources on a sustained-yield basis, or
to assure the continuation of subsistence
uses of such resources, subsistence use shall
be the priority use.
The wording of former AS 16.05.255(b) negates Morry's
contention that the statute's effect was to impose a mandatory
ministerial duty upon the Board to adopt subsistence regulations.
As our decisions reflect, the subject of subsistence is a very
complex one, which requires the consideration of numerous and
often competing policies, as well as analysis of massive amounts
of subsistence data, all of which are relevant to the
promulgation of subsistence regulations.10 Further, the text of
former AS 16.05.255(b) directs the Board of Game to make
determinations as to the impact of subsistence uses on the
maintenance of game resources on a sustained yield basis and to
impose restrictions if necessary. These statutory provisions
explicitly vest the Board with discretionary policymaking
authority and cannot reasonably be read as mere ministerial
Furthermore, in the case at bar the trophy hunting
regulations which were declared invalid under Morry I antedate
the enactment of AS 16.05.258(c). Morry's original claim asked
that these regulations (under which he was charged) be declared
invalid because of a failure to review them after the enactment
of the subsistence statute. Thus this is not a case where the
Board of Game completely defaulted upon its obligation to adopt
subsistence regulations. Here the Board mistakenly relied on
existing trophy regulations for compliance with the requirements
of AS 16.05.258(c). Our determination in Morry I that the Board
of Game's reliance on the trophy regulations constituted a
failure to comply with statute's requirement did not, under
Owsichek, divest the State of its immunity under the
discretionary function exception to the Tort Claims Act.11
1 Appellant Morry formulates the question in the
following manner: "May the State be held liable in compensatory
damages for the foreseeable harm caused to Morry by the Board of
Game's promulgation of regulations in violation of the Board's
non-discretionary duty imposed by the subsistence-preference law
to adopt subsistence hunting regulations?"
2 Morry states that "[t]he court did not directly address
Morry's invalid-regulation theory, but seems to have subsumed the
issue in its holding that 'the state cannot be held liable for
money damages for enforcement of its laws, even if the law is
later found to be unconstitutional. State v. Ensearch Alaska
Const., Inc., 787 P.2d 624, 635 (Alaska 1989).'"
3 Morry's other tort claims against Trooper Wilson (and
derivatively against the State) asserted that Wilson was liable,
under both state law and 42 U.S.C. 1983, for malicious
prosecution, abuse of process, denial of equal protection, and
selective enforcement. Morry has abandoned these claims and
points on appeal.
4 Whether the State is immune under the discretionary
function exception of the Tort Claims Act presents a question of
law, which we review de novo. See Johnson v. Alaska Dep't of
Fish & Game, 836 P.2d 896, 904-06 (Alaska 1991).
5 Regarding the first clause of AS 09.50.250(1), the
State notes that Morry has abandoned any claim that Trooper
Wilson committed errors in enforcing the invalid regulations.
The State further contends that in the absence of any allegations
that Trooper Wilson was not using due care, the first clause of
this statute "completely shields"the State from Morry's suit.
6 In our decision we noted that Owsichek did not base his
claim for damages on the legislature's enactment of an unconstitu
tional statute. Id. at 498 n.19. We further observed that had
he raised such an argument, it would have failed under our
holding in Vest v. Schafer, 757 P.2d 588, 598 (Alaska 1988).
Owsichek, 763 P.2d at 498 n.19. In Vest we wrote, "[W]e do not
believe it proper for the judiciary to assess damages against the
State on the ground that the legislature enacted a law later held
unconstitutional, in the absence of a statute allowing or
requiring such damages." 757 P.2d at 598.
7 In reaching this conclusion we referred to
In at least two cases, we have held
that acts of public officials who in good
faith misinterpret the law and act in excess
of their authority are immune from suit.
Earth Movers of Fairbanks, Inc. v. State, 691
P.2d 281, 283-84 (Alaska 1984) (police
officer lacked authority to temporarily
reduce speed limit); Bridges v. Alaska
Housing Authority, 375 P.2d 696, 698, 702
(Alaska 1962) (housing authority lacked power
to use declaration of taking). We have also
held that decisions involving the formulation
of basic policy are entitled to immunity.
See Industrial Indemnity Co. v. State, 669
P.2d 561, 563 (Alaska 1983).
Id. at 498.
8 Morry's theory of liability is that the Board of Game's
failure to comply with this non-discretionary duty, imposed by
the legislature, to adopt subsistence brown bear hunting
regulations caused him direct harm by subjecting him to the
foreseeable trauma and expense of criminal prosecution.
9 Morry supports this argument by citing Division of
Corrections v. Neakok, 721 P.2d 1121, 1133 (Alaska 1986), where
[O]nly decisions that rise to the level
of basic planning or policy formulation will
be considered discretionary; decisions that
implement policy decisions and are
ministerial or operational in nature will not
10 See, e.g., State v. Kluti Kaah Native Village, 831 P.2d
1270, 1271-72 (Alaska 1992); Madison v. Alaska Dep't of Fish &
Game, 696 P.2d 168, 170-72 (Alaska 1985); State v. Tanana Valley
Sportsmen's Ass'n, Inc., 583 P.2d 854, 856, 859 (Alaska 1978).
11 Our disposition makes it unnecessary to address any
remaining contentions of the parties.