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State of Alaska v. H. Palmer (10/7/94), 882 P 2d 386
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Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501.
THE SUPREME COURT OF THE STATE OF ALASKA
STATE OF ALASKA, )
) Supreme Court No. S-5585
)
Petitioner, ) Court of Appeals
) No. A-4005
)
v. ) Trial Court No.
) 3PA-S90-1150 CR
)
HOWARD PALMER, )
) O P I N I O N
)
Respondent. ) [No. 4129 - October 7, 1994]
______________________________)
Petition for Hearing from the Court of
Appeals of the State of Alaska, on Appeal
from the District Court of the State of
Alaska, Third Judicial District, Palmer,
Peter Ashman, Judge.
Appearances: Lance B. Nelson, Assistant
Attorney General, Anchorage, Charles E. Cole,
Attorney General, Juneau, for Petitioner.
John M. Murtagh, Anchorage, for Respondent.
Before: Moore, Chief Justice,
Rabinowitz, Matthews and Compton, Justices.
MATTHEWS, Justice.
Howard Palmer obtained a permit for himself, his wife,
and his son to participate in the 1990 Nelchina caribou hunt. On
August 23, 1990, Palmer shot two caribou. The State charged him
with violating the bag limit of one caribou under former
emergency regulation 5 AAC 85.025(a)(8).
Palmer filed a motion to dismiss the charges, arguing
that he could not be prosecuted because the regulation was
invalid. The trial court denied the motion and Palmer
subsequently pled no contest to the charge. Palmer appealed.
The court of appeals reversed. See Palmer v. State, Mem. Op. &
J. No. 2643 (Alaska App., March 10, 1993). Noting that the State
conceded that the emergency regulation was invalid, the court
held that Palmer had a right to insist that an indictment or
complaint against him be based on a valid statutory or regulatory
enactment. Id. Since Palmer was not prosecuted under a valid
regulation, the court concluded that the charges against him
should have been dismissed. Id.
We granted the State's petition for hearing, limiting
the issue to whether the invalid portion of the regulation was
severable from the remaining portions of the regulation.1 The
court of appeals did not consider the issue of severability.
In 1986, the State passed a subsistence law which
granted a preference to rural residents to take fish and game for
subsistence purposes. AS 16.05.258; see also McDowell v. State
785 P.2d 1 (Alaska 1989). In accordance with the statute, the
Board of Game (Board) adopted regulations governing subsistence
hunts for rural residents, including regulations for the Nelchina
caribou herd. See former 5 AAC 80.025(3); 5 AAC 85.025(8). In
McDowell, this court found that the rural preference expressed in
AS 16.05.258 violated several provisions of the Alaska Constitu
tion. 785 P.2d at 12. In addition to greatly increasing the
number of eligible subsistence users, the McDowell decision cast
doubt on the validity of many of the Board's subsistence
regulations.
With respect to the Nelchina caribou herd, the
increased number of eligible subsistence participants meant the
Board would have to implement a Tier II subsistence hunt.2 The
Board realized, however, that it was not possible to implement a
Tier II hunt in the amount of time remaining before the normal
fall season for Nelchina caribou. Given the circumstances, the
Board faced three choices: cancel the fall hunt, postpone the
fall hunt until a Tier II hunt could be implemented, or provide
for a registration hunt designed to accommodate potential Tier II
users. The Board believed that the first two alternatives,
cancelling or postponing the fall hunt, were contrary to the
welfare of the herd and the interests of subsistence users.
Therefore, the Board chose the third alternative and adopted
emergency regulation 5 AAC 85.025(a)(8).3 The regulation
provided for a registration hunt, with registration locations in
four communities near the Nelchina herd. The Board's aim was to
make it easy for subsistence hunters who relied on the Nelchina
caribou herd to obtain hunting permits.
Like all hunting regulations in Alaska, the emergency
regulation had three components: a participatory component,
which defines who may hunt; a seasonal component, which defines
when the hunt takes place; and a bag limit component, which
defines how many animals a hunter can kill. In accordance with
previous regulations governing the Nelchina hunt, the emergency
regulation limited each hunter to one caribou. The regulation
also provided for seasonal restrictions and limited the total
number of caribou that could be taken.
The sole issue before this court is whether the partici
patory component of former 5 AAC 85.025(a)(8), which we assume
for the purpose of this case to have been invalid, is severable
from the remainder of the regulation.4 The two-fold test for
determining the severability of a part of a statute is well
settled:
A provision will not be deemed severable
"unless it appears both that, standing alone,
legal effect can be given to it and that the
legislature intended the provision to stand,
in case others included in the act and held
bad should fall."
Lynden Transp., Inc. v. State, 532 P.2d 700, 713 (Alaska 1975)
(quoting Dorchy v. Kansas, 264 U.S. 286, 290 (1924)).5
The first component of the Lynden test is met in this
case as the regulation is capable of standing on its own absent
the participatory component. The resulting regulation would
read:
Subsistence/
Units and Resident Open
Nonresident
Bag limits Season Open
Season
Units 13 and 14 (B) Aug. 22-23 No open
1 caribou. Aug. 28-30 season.
Sept. 18-20
The fall
hunt will be
closed when 2,000
caribou have been
taken;
The Tier II permit Jan. 5-Mar. 31
hunt will be con-
ducted during the
Jan. 5 - Mar. 31
season; . . . The
winter Tier II hunt
will be closed when
2,000 caribou have
been taken.
Absent the participatory component, the regulation
allows every Alaskan to take one caribou from the Nelchina herd
during the fall hunting season until 2,000 caribou have been
taken. Clearly, this regulation is capable of being given legal
effect regardless of the validity of the participatory component.
The second component of the Lynden test requires us to
determine whether the Board would have intended the remainder of
the regulation to stand if the participatory component were
declared invalid. See Lynden 532 P.2d at 713; Jefferson v. State
527 P.2d 37, 41 (Alaska 1974) (stating that a reviewing court
should determine "whether the remaining parts are so independent
and complete that it may be presumed that the legislature would
have enacted the valid parts without regard to the invalid
parts"). Palmer argues that the Board's purpose in adopting the
emergency regulation was twofold: to establish a subsistence
hunt and to maintain and protect the resource by limiting the
total number of caribou that could be taken from the herd.
Palmer's assertion that the Board intended to establish a
subsistence hunt is only partially correct. Although the Board
did want to accommodate subsistence users, it realized that it
could not establish a subsistence hunt in the limited time
available. Faced with the alternatives of cancelling or
postponing the fall hunt, both of which would have had a negative
impact on the herd and on subsistence users, the Board chose to
proceed with a less than perfect hunt. Thus, the main purpose of
the emergency regulation was not to create a subsistence hunt but
to ensure a fall hunt of some kind. The Board designed the hunt
to accommodate subsistence users but realized it could not
completely eliminate other hunters from participating. The
regulation that remains after eliminating the participatory
component meets this goal.
Palmer also argues that without the participation
restriction, there is nothing in the regulation to protect the
herd; therefore, the Board could not have intended the regulation
to stand. Palmer reaches this conclusion by eliminating too much
of the regulation. Assuming the participatory component of the
regulation is flawed, the remainder of the regulation includes
the bag limit, the season restriction, and the maximum limit on
the number of caribou that could be taken during the fall hunt.
Thus, the regulation adequately protects the resource and
Palmer's argument must fail.
Palmer is charged with violating the bag limit of
emergency regulation 5 AAC 85.025(a)(8). Since we have found
that the invalid participatory component of the regulation is
severable from the remainder of the regulation, the charges
against Palmer should not have been dismissed. Thus, we REVERSE
the decision of the court of appeals.6
_______________________________
1 The State also sought review from the court of appeals'
conclusion that it had conceded that the regulation was invalid.
We express no view on that point. If, however, the concession
was made, it related to non-compliance with the standards set
forth in former AS 16.05.258(c) concerning who may participate in
a Tier II hunt -- a hunt in which "it is necessary to restrict
. . . subsistence hunting." Former AS 16.05.258.
In our order granting review, we limited this appeal to
one issue: "Assuming the participatory (Tier II) component of 5
AAC 85.025(a)(8) is invalid, is that component severable, leaving
the remaining components of the regulation, including the bag
limit, valid?" See Alaska Supreme Court Order (May 5, 1993).
2 The Board realized that the Nelchina herd was not big
enough to accommodate the increased number of subsistence hunters
who might want to participate. In such cases, former AS
16.05.258 provided for a Tier II hunt. Officials implementing a
Tier II hunt limited the eligible subsistence hunters on the
basis of three factors: customary and direct dependence on the
fish stock or game population as the mainstay of livelihood,
local residency, and availability of alternative resources.
Former AS 16.05.258.
3 5 AAC 85.025(a)(8) stated:
Subsistence/
Units and Resident Open
Nonresident
Bag limits Season Open
Season
Units 13 and 14 (B) Aug. 22-23 No open
1 caribou by Aug. 28-30 season.
registration or Sept. 18-20
Tier II permit
only. The fall
registration permit
hunt will be
closed when 2,000
caribou have been
taken;
The Tier II permit Jan. 5-Mar. 31
hunt will be con-
ducted during the
Jan. 5 - Mar. 31
season; . . . The
winter Tier II hunt
will be closed when
2,000 caribou have
been taken.
4 The severability of a portion of a regulation is a
question of law upon which this court exercises its independent
judgment. Odum v. University of Alaska, Anchorage, 845 P.2d 432,
434 (Alaska 1993).
Administrative regulations which are legislative in
character are interpreted under the same principles applicable to
statutes. State, Dep't of Highways v. Green, 586 P.2d 595, 603
n.24 (Alaska 1978). AS 01.10.030 provides:
Constitutionality and severability.
Any law heretofore or hereafter enacted by
the Alaska legislature which lacks a
severability clause shall be construed as
though it contained the clause in the
following language, "If any provision of this
Act, or the application thereof to any person
or circumstance is held invalid, the
remainder of this Act and the application to
other persons or circumstances shall not be
affected thereby."
5 The test set forth in Lynden refers specifically to
determining the severability of a statute but it is equally
applicable to determining the severability of a regulation. See
Wilson v. Commercial Fisheries Entry Comm'n, 770 P.2d 1126, 1130
(Alaska 1989) (citing Lynden to support severability of
regulation); Kenai Peninsula Borough Sch. Dist. v. Kenai
Peninsula Borough Sch. Dist. Classified Ass'n, 590 P.2d 437
(Alaska 1979) (applying Lynden test to determine whether valid
portions of school district's labor policy could be given legal
effect); Beran v. State, 705 P.2d 1280, 1285 (Alaska App. 1985)
(applying Lynden twofold test to determine severability of
regulation); see also State, Dep't of Highways v. Green, 586 P.2d
595, 603 n.24 (Alaska 1979) (stating that administrative
regulations which are legislative in character are interpreted
using same principles as those applicable to statutes).
6 It is worth noting that although many cases finding a
portion of a regulation or statute severable involve prospective
as well as retroactive applications, here there is no question of
prospective application. The regulation at issue governed only
the 1990 Nelchina caribou hunt and is no longer in force.
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