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Rosier v. Kenaitze Indian Tribe (5/9/95), 894 P 2d 632
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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, phone (907)
264-0607, fax (907) 276-5808.
THE SUPREME COURT OF THE STATE OF ALASKA
STATE OF ALASKA and CARL L. )
ROSIER, in his official ) Supreme Court No. S-
6162
capacity as Commissioner )
of Fish and Game, )
)
Appellants, )
) Superior Court
No. v. ) 3AN-91-
4569 CI
)
KENAITZE INDIAN TRIBE, ) O P I N I O N
NINILCHIK TRADITIONAL COUNCIL,)
KNIK TRIBAL COUNCIL, and the )
NATIVE VILLAGE OF EKLUTNA, )
)
Appellees. ) [No. 4201 - May 9,
1995]
______________________________)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage,
Dana Fabe, Judge.
Appearances: Stephen M. White, Assistant
Attorney General, Juneau; T. Henry Wilson,
Assistant Attorney General, Anchorage; Bruce
M. Botelho, Attorney General, Juneau, for
Appellants. Carol H. Daniel, Alaska Legal
Services Corporation, Anchorage; Eric Smith,
Anchorage; William E. Caldwell, Alaska Legal
Services Corporation, Fairbanks, for
Appellees.
Before: Moore, Chief Justice, Rabinowitz,
Matthews, Compton and Eastaugh, Justices.
MATTHEWS, Justice.
The issues in this case are whether the
Alaska Constitution is violated by a statute which (1)
requires the creation of areas in which permits for
subsistence hunting and fishing may not be granted, and (2)
grants priority hunting and
fishing rights to a preferred class of subsistence users based
on where they reside.
I. BACKGROUND
Since 1978, subsistence hunting and fishing has
had statutory priority over sport and commercial hunting and
fishing.1 In practice, when a fish or game population is
insufficient to supply all consumptive uses consistent with
the sustained yield principle,
nonsubsistence uses must be restricted; when a
population is sufficient only to supply subsistence uses,
non
subsistence uses must be eliminated.2
From the outset, the statute establishing
the
subsistence priority created two tiers of subsistence
users.3 The first tier includes all subsistence users.4 The
second tier is more restricted. Tier II status becomes
important when a fish or game
population is inadequate to satisfy all subsistence
needs. In such cases Tier I users' harvest opportunities must
be curtailed or
eliminated so that Tier II users can harvest the
population.5
Under the current statutory formulation the Boards
of Fisheries and Game define Tier II subsistence users based on:
(i) the customary and direct dependence on
the fish stock or game population by
the subsistence user for human
consumption as a mainstay of
livelihood;
(ii) the proximity of the domicile of
the
subsistence user to the stock
or population; and
(iii) the ability of the subsistence user
to
obtain food if subsistence is
restricted or eliminated.
AS 16.05.258(b)(4)(B).
In 1986 the subsistence statute was amended to
define subsistence hunting and fishing as activities which
can be undertaken "only by a resident domiciled in a rural area
of the state."6
The term "subsistence uses" was also defined as
requiring residency in a rural area.7 A rural area, in turn,
was defined as "a community or area of the state in which the
noncom mercial,
customary, and traditional use of fish or game for
personal or family consumption is a principal characteristic
of
the economy of the community or area."8 Subsistence
activities were limited to rural areas.9
In McDowell v. State, 785 P.2d 1 (Alaska 1989), we
held that the
1986 statute was unconstitutional insofar as
it
disqualified as subsistence users residents of areas
classified as nonrural. Following McDowell, all Alaskans became
eligible to participate in subsistence hunting and fishing.
State v. Morry, 836 P.2d 358, 368 (Alaska 1992).
In 1992 the legislature revised the
subsistence statute.10
As revised, the statute continues to grant subsistence
a priority over other consumptive uses and continues to
provide for two
tiers of subsistence users.11 However, the new statute
also requires the Boards to identify nonsubsistence areas -
areas where no subsistence priority exists.12 The definition of
a nonsubsistence area under the 1992 revision, "an area
or
community where dependence upon subsistence is not a
principal
characteristic of the economy, culture, and way of life of
the area or community,"is essentially the negative of the
definition of "rural area"which is still defined as "a
community or area of the state in which the noncommercial,
customary, and traditional use of
fish or game for personal or family consumption is a
principal characteristic of the economy of the community
or
area."13 The nonsubsistence provisions of the 1992 revisions
to
AS 16.05.258 expire on October 1, 1995, and the 1986
version again becomes law.14
Pursuant to the 1992 revisions, the Boards
established the "Anchorage/MatSu/Kenai nonsubsistence area"
encompassing most of the Kenai Peninsula, all of the
Municipality of Anchorage, and much of the Matanuska Susitna
Borough. In addition, the Boards established nonsubsistence
areas in regions surrounding Fairbanks, Ketchikan,
Juneau, and Valdez. 5 AAC 99.015.
II. PROCEEDINGS BELOW
The Kenaitze Indian Tribe filed suit in 1991, seeking
a judicial declaration (1) that it was entitled to
operate a communal set net in the Kenai River and (2) that
the State was not managing the salmon stocks in Upper Cook
Inlet in accordance with the
subsistence priority as required by law. When the
Boards established the Anchorage/MatSu/Kenai nonsubsistence
area, Kenaitze
amended its complaint to state claims that the
nonsubsistence area violated its members' state
constitutional rights under the equal access clauses of
article VIII, sections 3, 15, and 17, and the equal rights
and opportunities clause of article I, section 1 of the
Alaska Constitution.
Further,
Kenaitze claimed that the Boards' creation of
the
Anchorage/MatSu/Kenai nonsubsistence area was not in
compliance with the
1992 statute because the Boards had exceeded their
authority and acted arbitrarily. The Ninilchik
Traditional
Council, the Native Village of Eklutna, and the Knik
Tribal Council intervened and filed similar claims.15
The State and Kenaitze filed cross-motions for
partial summary judgment on their constitutional claims. The
superior court granted the motion of Kenaitze and denied
that of the State. The
court entered a final judgment declaring the
nonsubsistence area provision of the 1992 act unconstitutional
in violation
of article VIII, sections 3, 15, and 17 of the Alaska
Constitution and therefore void, and severed AS 16.05.258(c)
from the remainder of the 1992 act. The other claims of
Kenaitze were declared moot. The State now appeals.
Briefly stated, the rationale of the superior court
was as follows. Residents of nonsubsistence areas and
residents of subsistence areas are similarly situated classes.
The former are treated differently than the latter because
"only residents outside of nonsubsistence areas . . . are
afforded convenient local subsistence access to fish and game
resources." Moreover, when fish and game populations are
insufficient to satisfy all subsistence needs and the Tier
II preference is
invoked,
"residents of nonsubsistence areas will inevitably
suffer compared to other subsistence users,"because the
section which determines who may become a Tier II hunter or
fisherman "requires consideration of 'the proximity of
the domicile of
the
subsistence user to the stock or population.'
AS
16.05.258(b)(4)(B)(ii)." This differential treatment may
be justified
by the need to allocate fish and wildlife resources
"given the key social and economic roles that subsistence,
sport, and commercial fishing and hunting play in the state, as
well as the mandate of article VIII, section 4 of the Alaska
Constitution that replenishable resource utilization be
'subject to
preferences among beneficial uses.'" However, based on
language in Gilbert v. State, 803 P.2d 391, 399 (Alaska
1990), an allocation must restrict competing uses to the
least possible extent consistent with the purpose of the
allocation. Alaska Statute 16.05.258(c) fails to meet this
requirement as it bars subsistence in a particular area
without requiring consideration of resource availability:
"To create areas where subsistence activities are flatly
prohibited, without consideration
of
whether the resources in the area could support some kind
of balance between subsistence, sport and commercial hunting
and fishing, does not further the state's expressed
purpose to
'allocate' resources among user groups." The superior
court concluded as follows:
Stepping back to view the statute in
light of its history, it becomes
apparent that the criteria in AS
16.05.258(c) for determining
nonsubsistence areas effectively re-
establish the rural/urban residency
requirement struck down in McDowell.
The statutory language defining "rural
areas" in the
1986 statute is repeated in the
definition of "nonsubsistence areas"
under the 1992 statute. Compare AS
16.05.940(25) (1986) with AS 16.05.258(c)
(1992). The only significant change has
been to do away with the requirement that
only rural residents may become members of
the subsistence user class, although
subsistence use is still allowed only
in rural areas. The statute, by
selectively prohibiting local
subsistence activities and
conferring "tier
two"
advantages based on the proximity of
one's domicile to available subsistence
resources, is plainly discriminatory
against residents of nonsubsistence areas.
Such a substantially residency-based
classification scheme, under McDowell,
violates the equal access clauses of the
Alaska Constitution.
Because of the importance of the role that the Tier
II domicile factor assumed in the rationale of the superior
court, we ordered that the parties brief the constitutionality
of this factor along with the other issues in the case.16
III. DISCUSSION
A. Relevant Constitutional and Statutory Provisions
The equal access clauses of the Alaska Constitution
are article VIII, sections 3, 15, and 17; the sustained yield
clause is contained in article VIII, section 4.17 Alaska
Statute
16.05.258 is the current subsistence statute.18, 19 Section 1
of chapter 1, SSSLA 1992 contains the legislative findings,
purpose and intent with respect to the 1992 subsistence
revisions.20
B. Is the "Proximity of the Domicile"
Factor
Unconstitutional?
We turn first to the question of whether
linking eligibility for Tier II subsistence status to
"proximity of the domicile of the subsistence user"to the
target fish or game population violates article VIII,
sections 3, 15, and 17 of the Alaska Constitution. This
question is governed by our decision in McDowell v. State, 785
P.2d 1 (Alaska 1989).
At issue in McDowell was whether provisions in the
1986 subsistence statute which barred all nonrural Alaska
residents from eligibility as first or second tier
subsistence users violated the article VIII equal access
clauses. Id. at 1. We held that the rural preference was a
special privilege explicitly barred by the first sentence of
section 15 and implicitly barred by the common use and equal
application clauses, sections 3 and 17. Id. at 6, 9. We
concluded "that the requirement contained in the 1986
subsistence statute, that one must reside in a rural area in
order to participate in subsistence hunting and fishing,
violates sections 3, 15, and 17 of article VIII of the
Alaska Constitution." Id. at 9.
Concerning sections 3, 15, and 17 of article VIII,
we observed that while they have varied ramifications they
share one meaning: "exclusive
or special privileges to take fish and
wildlife are prohibited." Id. at 6. We noted that these
clauses
afford protection against the creation of a "closed class"
of fish and game users. Id. at 6-7. We observed that although
the state was empowered to make decisions concerning which
among such diverse groups as commercial, sport and subsistence
users would have a preferred right to harvest a certain
species, that authority "does not imply a power to limit
admission to a user group." Id. at 8.
We explained that the constitution does not
bar "all methods of exclusion where exclusion is required
for species protection reasons." Id. at 9. While we had no
occasion to state what exclusionary criteria might be
permissible in such circumstances, the opinion makes it clear
that residence-based criteria are not permissible. We
both quoted and stressed language holding that people who
reside near a fish or game population do not have a
higher claim to that population than state residents whose
domiciles are more distant:
Where the necessity for the preservation
of the wild game and fish exists in certain
territories of the state, that territory may be
segregated for the purpose of regulating the right
to taking game and fish therein; but the privilege
of taking and using same must be extended to the
people of the state outside of the territory upon the
same terms that are given to those who are residents
of the territory embraced in the legislation.
Id. at 12 (quoting Lewis v. State, 161 S.W. 154, 155-56
(Ark. 1913)) (emphasis added by this court in McDowell).
Our holding in McDowell is controlling here.
The requirements of the equal access clauses apply to both
tiers of subsistence users. Just as eligibility to
participate in all subsistence hunting and fishing cannot
be made dependent on whether one lives in an urban or
rural area, eligibility to participate in Tier II subsistence
hunting and fishing cannot be based on how close one lives to a
given fish or game population.21
We conclude that AS 16.05.258(b)(4)(B)(ii), which
uses
the proximity of the domicile of the Tier II subsistence
permit applicant to the fish or game population which the
applicant wishes to harvest as a basis for the applicant's
eligibility, violates sections 3, 15, and 17 of article VIII
of the Alaska Constitution.
The question which flows from this conclusion
is whether the entire subsistence statute should
be declared
unconstitutional or whether AS 16.05.258(b)(4)(B)(ii) may
be severed from the rest of the statute.
A general severability clause is contained in
AS 01.10.030:
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."
In Lynden Transport, Inc. v. State, 532 P.2d 700,
71213 (Alaska 1975), we indicated that this clause reverses
the common law presumption against severability and creates a
slight presumption in favor of severability:
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."
Id. at 713 (quoting Dorchy v. Kansas, 264 U.S. 286, 290
(1924)). "The key question is whether the portion remaining,
once the offending portion of the statute is severed, is
independent and complete in itself so that it may be
presumed that the
legislature would have enacted the valid parts without
the invalid part." Sonneman v. Hickel, 836 P.2d 936, 941
(Alaska 1992).
Deleting subpart (ii) from AS
16.05.258(b)(4)(B) results in a subsection which requires the
creation of a Tier II class of subsistence users based on
dependence on the target fish or game population and the
ability of the individual subsistence user to obtain food if
subsistence use of the particular population were restricted
or eliminated. The subsection as thus redacted is logically
complete and capable of being given legal meaning.
Whether the legislature would have intended
the subsection as
redacted to stand had it known that the proximity
of the domicile clause would be held unconstitutional is
a question which cannot be answered with complete
confidence. However, given the importance of subsistence as
reflected in the legislative findings prefacing the 1992 act,22
periods in which individuals needfully dependent on
subsistence are deprived of an opportunity to harvest fish or
game are to be avoided. A holding that subsection (B)(ii) is
not severable could result in such a period. Given
this, and the statutory presumption in favor of
severability, we conclude that (B)(ii) is severable.
C. Is AS 16.05.258(c) Unconstitutional?
Alaska Statute 16.05.258(c) requires the Boards
to "identify by regulation"nonsubsistence areas.23 In these
areas, the subsistence priority over sport and commercial uses
does not apply, and the statute states that "[t]he boards may
not permit subsistence hunting or fishing." However, personal
use fishing24 and sport
hunting are allowed. As the methods of conducting
these pursuits are similar to their subsistence counterparts,
the critical difference in nonsubsistence areas is the absence
of the subsistence priority. When this is appreciated, the
superior court's conclusion that section 258(c) authorizes the
creation of "areas where subsistence activities are flatly
prohibited, without consideration of whether the resources in
the area could support some kind of balance between
subsistence, sport, and commercial" uses may be
critically examined. Subsistence activities -- fishing with
nets or other devices or hunting with firearms for food for
personal and family consumption -- are in no sense flatly
prohibited in nonsubsistence areas. Though subsistence
permits may not be issued, subsistence activities can still take
place. What is eliminated in nonsubsistence areas is the
statutory subsistence priority. Without the subsistence
priority, a balance may be struck in allocating fish and
game resources between commercial, sport, and subsistence
types of activities. The interests of all competing
users can be
considered.25 With the statutory subsistence priority intact
no balance is possible as long as a fish or game population is
not sufficient to provide for all subsistence uses.
A nonsubsistence area "is an area or community
where dependence upon subsistence is not a principal
characteristic of the economy, culture, and way of life of the
area or community."26 Under the 1986 subsistence statute,
only fish and game populations in rural areas could be
exploited for subsistence purposes.27 A "rural area"was
defined as a "community or area of the state in which the
noncommercial, customary, and traditional use of fish or
game for personal or family consumption is a principal
characteristic of the economy of the community or area."28
Thus, the areas defined as "nonrural"under the 1986
statute are now defined as "nonsubsistence areas"under the
1992 statute. What the 1992 statute adds is the requirement
that the Boards jointly consider the relative importance of
subsistence in a given area based on twelve enumerated socio-
economic factors.29 Even this did not signal a change in
practice, however, as the twelve factors parallel twelve
factors expressed in a regulation used by the Boards to
determine whether an area was "rural."30
The superior court held that AS 16.05.258(c)
is
unconstitutional for reasons which we have summarized above.
See supra at 7-8. Much of the court's rationale was based
on the proximity of the
domicile requirement of AS
16.05.258(b)(4)(B)(ii) which effectively barred residents
of nonsubsistence areas from participating in Tier II hunts.
With
the proximity of the domicile requirement stricken, the
remaining detriment to residents of nonsubsistence areas
identified by the superior court is a claim of differential
treatment based on inconvenience: "[O]nly residents outside
of nonsubsistence areas . . . are afforded convenient local
subsistence access to fish and game resources."
Inconvenience is in no sense the equivalent of a bar
to eligibility for participation in subsistence hunting and
fishing and does not suffice to trigger an analysis under
the equal access clauses. What we recently stated in Tongass
Sport Fishing Ass'n v. State, 866 P.2d 1314, 1318 (Alaska
1994), is also applicable to the current case:
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 Board, 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. In
Kenai Peninsula [Fishermen's Cooperative
Ass'n v. State, 628 P.2d 897 (Alaska
1981)] 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.
The fact that residents of nonsubsistence areas
must travel in order to utilize subsistence permits is
not a limitation to their admission to a subsistence user
group.31 Further, just as the fact that a certain
species is made available for sport fishing in a given area
does not mean that the same species must be made available
for commercial fishing in
the same area, the fact that a certain species is made
available for sport or commercial use in a given area does
not mean that the constitution commands that the same species
be made available in the same area for priority subsistence
use.
The legislature has mandated that the Boards,
in determining which areas are to be nonsubsistence areas,
make decisions allocating fish and game resources among
competing users. Such decisions are constitutionally
required under article VIII, section 4 of the Alaska
Constitution.32 "The state may, indeed must, make
allocation decisions between sport, commercial, and
subsistence users." McDowell v. State, 785 P.2d 1, 8
(Alaska 1989). Allocation decisions entail a complex
mixture of biological, historical, and socio-economic
factors.33 These factors are "often competing." Tongass
Sport Fishing Ass'n, 866 P.2d at 1319.
In reviewing allocation decisions made by the Board,
a deferential standard of review is employed. Board decisions
are upheld so long as they are not unreasonable or
arbitrary and proper procedures have been followed. Id.
(Board's decision favorable to commercial trollers concerning
allocation of king salmon in Southeast Alaska not
"unreasonable or arbitrary"); Gilbert v. State, Dep't of Fish
& Game, 803 P.2d 391, 399 (Alaska 1990) (Board's decision
allocating sockeye salmon between commercial fishing
interests in two areas on the Alaska Peninsula not arbitrary or
unreasonable); Meier v. State, Bd. of Fisheries, 739 P.2d 172,
174-175 (Alaska 1987) (Board's decision allocating sockeye
salmon between commercial setnetters and driftnetters in
Bristol Bay "reasonable and not arbitrary."). We have
not subjected allocation decisions to the more rigorous
least restrictive alternative test employed in cases where
entry into a user class is restricted. Compare McDowell, 785
P.2d at 10; Owsichek, 763 P.2d at 498 n.17; and Johns v.
Commercial Fisheries Entry Comm'n, 758 P.2d 1256, 1266
(Alaska 1988), with Tongass, 866 P.2d at 1319; Gilbert, 803
P.2d at 399; and Meier, 739 P.2d at 175.34 Allocation
decisions are so complex and multi-faceted that they are not
amenable to analysis under such a test.
In this case, the court did not reach the question
of whether the joint Boards acted unreasonably or
arbitrarily in creating the Anchorage/MatSu/Kenai
nonsubsistence area. Instead, the court ruled that the statute
was invalid on its face using a least restrictive alternative
test. Given the proximity of the domicile Tier II
requirement, use of this test was not error, for that
requirement erected a bar to admission to a user class.
However, with this requirement stricken from the statute,
this test no longer applies.
Alaska Statute 16.05.258(c), as it stands without
the domicile proximity requirement, contains no
characteristics
implicating the equal access clauses of article VIII. It bars
no Alaskan from participating in any fish or game user class.
As these clauses formed the basis for the superior court's
decision and no alternative grounds for upholding the
court's decision have been argued, the decision must be
reversed.
IV. CONCLUSION
The Tier II proximity of the domicile factor
violates sections 3, 15, and 17 of article VIII of
the Alaska
Constitution, because it bars Alaska residents from
participating in certain subsistence activities based on where
they live. The statutory section mandating the creation of
nonsubsistence areas does not violate these sections. The
judgment of the superior court is REVERSED and this case
is REMANDED for further proceedings consistent
with this opinion.
_______________________________
1 Ch. 151, 5, SLA 1978; Madison v. Alaska Dep't of Fish
&
Game, 696 P.2d 168, 174 n.12 (Alaska 1985).
2 AS 16.05.258(b)(4), set forth at note 18 infra.
3 Ch. 151, 4, SLA 1978.
4 AS 16.05.258(b)(3), set forth at note 18 infra.
5 AS 16.05.258(b)(4), set forth at note 18 infra.
6 Ch. 52, 9, 11, SLA 1978; AS 16.05.940(28)-(29)
(1986);
McDowell v. State, 785 P.2d 1 (Alaska 1989).
7 Ch. 52, 10, SLA 1978; AS 16.05.940(30) (1986).
8 Ch. 52, 11, SLA 1978; AS 16.05.940(25) (1986).
9 Ch. 52, 6, SLA 1978; AS 16.05.258(a) (1986)
provided:
The Board of Fisheries and the Board of Game
shall identify the fish stocks and game populations,
or portions of stocks and populations, that are
customarily and tradi tionally used for
subsistence in each rural area identified by the
boards.
10 Ch. 1, SSSLA (Second Special Session Laws
Amended)
1992.
11 AS 16.05.258(b)(4)(B) set forth at note 18 infra.
12 AS 16.05.258(c) set forth at note 18 infra.
13 AS 16.05.940(27).
14 Ch. 1, 3, 12, SSSLA 1992.
15 We will hereafter refer to all the appellees
as
"Kenaitze."
16 Our order stated: "To the extent that 'tier
two'
subsistence users are permitted to take fish and game
for subsistence use based on the 'proximity of the domicile
of the subsistence user to the stock or
population,' AS
16.05.258(b)(4)(B)(ii), is tier two unconstitutional
under McDowell v. State, 785 P.2d 1 (Alaska 1989)?"
17 Section 3 of article VIII provides:
Wherever occurring in their natural
state, fish, wildlife, and waters
are reserved to the people for common use.
Section 4 of article VIII 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.
Section 15 of article VIII 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.
Section 17 of article VIII 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.
18 AS 16.05.258 provides:
(a) Except in nonsubsistence areas, the
Board of Fisheries and the Board of Game
shall identify the fish stocks and game
populations, or portions of stocks or
populations, that are customarily and
traditionally taken or used for subsistence.
The commissioner shall provide
recommendations to the boards concerning the
stock and population identifications. The
boards shall make identifications required
under this subsection after receipt of the
commissioner's recommendations.
(b) The appropriate board shall deter
mine whether a portion of a fish stock or
game population identified under (a) of this
section can be harvested consistent with
sustained yield. If a portion of a stock or
population can be harvested consistent with
sustained yield, the board shall determine
the amount of the harvestable portion that is
reasonably necessary for subsistence uses and
(1) if the harvestable portion of the
stock or population is sufficient to provide
for all consumptive uses, the appropriate
board
(A) shall adopt regulations that provide
a reasonable opportunity for subsistence uses
of those stocks or populations;
(B) shall adopt regulations that provide
for other uses of those stocks or
populations, subject to preferences among
beneficial uses; and
(C) may adopt regulations to differenti
ate among uses;
(2) if the harvestable portion of the
stock or population is sufficient to provide
for subsistence uses and some, but not all,
other consumptive uses, the appropriate board
(A) shall adopt regulations that provide
a reasonable opportunity for subsistence uses
of those stocks or populations;
(B) may adopt regulations that provide
for other consumptive uses of those stocks or
populations; and
(C) shall adopt regulations to differen
tiate among consumptive uses that provide for
a preference for the subsistence uses, if
regulations are adopted under (B) of this
paragraph;
(3) if the harvestable portion of the
stock or population is sufficient to provide
for subsistence uses, but no other
consumptive uses, the appropriate board shall
(A) determine the portion of the stocks
or populations that can be harvested
consistent with sustained yield; and
(B) adopt regulations that eliminate
other consumptive uses in order to provide a
reasonable opportunity for subsistence uses;
and
(4) if the harvestable portion of the
stock or population is not sufficient to
provide a reasonable opportunity for
subsistence uses, the appropriate board shall
(A) adopt regulations eliminating con
sumptive uses, other than subsistence uses;
(B) distinguish among subsistence users,
through limitations based on
(i) the customary and direct dependence
on the fish stock or game population by the
subsistence user for human consumption as a
mainstay of livelihood;
(ii) the proximity of the domicile of
the subsistence user to the stock or
population; and
(iii) the ability of the subsistence
user to obtain food if subsistence use is
restricted or eliminated.
(c) The boards may not permit subsis
tence hunting or fishing in a nonsubsistence
area. The boards, acting jointly, shall
identify by regulation the boundaries of
nonsubsistence areas. A nonsubsistence area
is an area or community where dependence upon
subsistence is not a principal characteristic
of the economy, culture, and way of life of
the area or community. In determining whether
dependence upon subsistence is a principal
characteristic of the economy, culture, and
way of life of an area or community under
this subsection, the boards shall jointly
consider the relative importance of
subsistence in the context of the totality of
the following socio-economic characteristics
of the area or community:
(1) the social and economic structure;
(2) the stability of the economy;
(3) the extent and the kinds of
employment for wages, including full-time,
part-time, temporary, and seasonal
employment;
(4) the amount and distribution of cash
income among those domiciled in the area or
community;
(5) the cost and availability of goods
and services to those domiciled in the area
or community;
(6) the variety of fish and game species
used by those domiciled in the area or
community;
(7) the seasonal cycle of economic
activity;
(8) the percentage of those domiciled in
the area or community participating in
hunting and fishing activities or using wild
fish and game;
(9) the harvest levels of fish and game
by those domiciled in the area or community;
(10) the cultural, social, and economic
values associated with the taking and use of
fish and game;
(11) the geographic locations where
those domiciled in the area or community hunt
and fish;
(12) the extent of sharing and exchange
of fish and game by those domiciled in the
area or community;
(13) additional similar factors the
boards establish by regulation to be relevant
to their determinations under this
subsection.
(d) Fish stocks and game populations,
or portions of fish stocks and game
populations not identified under (a) of this
section may be taken only under
nonsubsistence regulations.
(e) Takings and uses of fish and game
authorized under this section are subject to
regulations regarding open and closed areas,
seasons, methods and means, marking and
identification requirements, quotas, bag
limits, harvest levels, and sex, age, and
size limitations. Takings and uses of
resources authorized under this section are
subject to AS 16.05.831 and AS 16.30.
(f) For purposes of this section, "rea
sonable opportunity"means an opportunity, as determined
by the appropriate board, that allows a subsistence user to
participate in a subsistence hunt or fishery that provides
a normally diligent participant with a reasonable
expectation of success of taking of fish or game.
19 AS 16.05.940, also relevant, provides in part:
(7) "customary and traditional"means
the noncommercial, long-term, and consistent
taking of, use of, and reliance upon fish or
game in a specific area and the use patterns
of that fish or game that have been
established over a reasonable period of time
taking into consideration the availability of
the fish or game;
. . . .
(24) "personal use fishing"means the
taking, fishing for, or possession of
finfish, shellfish, or other fishery
resources, by Alaska residents for personal
use and not for sale or barter, with gill or
dip net, seine, fish wheel, long line, or
other means defined by the Board of
Fisheries;
. . . .
(27) "rural area"means a community or
area of the state in which the noncommercial,
customary, and traditional use of fish or
game for personal or family consumption is a
principal characteristic of the economy of
the community or area;
. . . .
(30) "subsistence fishing" means the
taking of, fishing for, or possession of
fish, shellfish, or other fisheries resources
by a resident domiciled in a rural area of
the state for subsistence uses with gill net,
seine, fish wheel, long line, or other means
defined by the Board of Fisheries;
(31) "subsistence hunting" means the
taking of, hunting for, or possession of game
by a resident domiciled in a rural area of
the state for subsistence uses by means
defined by the Board of Game;
(32) "subsistence uses" means the
noncommercial, customary and traditional uses
of wild, renewable resources by a resident
domiciled in a rural area of the state for
direct personal or family consumption as
food, shelter, fuel, clothing, tools, or
transportation, for the making and selling of
handicraft articles out of nonedible
by-products of fish and wildlife resources
taken for personal or family consumption, and
for the customary trade, barter, or sharing
for personal or family consumption; in this
paragraph, "family"means persons related by
blood, marriage, or adoption, and a person
living in the household on a permanent
basis[.]
20 FINDINGS, PURPOSE, AND INTENT. (a) The
legislature finds that
(1) there are Alaskans, both Native and
non-Native, who have a traditional, social,
or cultural relationship to and dependence
upon the wild renewable resources produced by
Alaska's land and water; the harvest and use
of fish and game for personal and group
consumption is an integral part of those
relationships;
(2) although customs, traditions, and
beliefs vary, these Alaskans share ideals of
respect for nature, the importance of using
resources wisely, and the value and dignity
of a way of life in which they use Alaska's
fish and game for a substantial portion of
their sustenance; this way of life is
recognized as "subsistence";
(3) customary and traditional uses of
Alaska's fish and game originated with Alaska
Natives, and have been adopted and
supplemented by many non-Native Alaskans as
well; these uses, among others, are
culturally, socially, spiritually, and
nutritionally important and provide a sense
of identity for many subsistence users;
(4) while Alaska's fish and game are
generally still plentiful, these resources
are not unlimited and cannot provide for
every desired use, now or in the future;
competition for and the level of effort on
these resources have required the legislature
and the Board of Fisheries and Board of Game
to establish a preference for subsistence
among the various beneficial uses of fish and
game in the state; and
(5) in most areas of the state, a
preference for subsistence can be provided
without an overly burdensome intrusion upon
other consumptive uses of fish and game.
(b) It is the purpose of this Act
(1) to develop and maintain healthy fish
stocks and game populations through management
based on the sustained yield principle; and
(2) to provide for a preference for
subsistence uses over other consumptive uses
of fish and game resources.
(c) It is the intent of the legislature that
(1) subsistence uses of Alaska's fish
and game resources are given the highest
preference, in order to accommodate and perpetuate
those uses; and
(2) this Act not result in significant
reallocations of fish and game in Alaska.
21 Section 3 of article VIII is particularly strong
in requiring that proximity to the resource be a neutral factor.
It reserves "to the people for common use"wild fish and game
"[w]herever occurring."
22 See note 20 supra.
23 fort at note 18 supra. Ch. 52, 5 6, SLA 1
2478; A 16.05.258(a) (1986) set forth at note 9 supra
25 Ch. 52, 5 11, SLA 1978; AS 16.05.940(25) (1986). U
nder the 1992 act this definition is found in AS 16.05.940(27).
AS 16.05.258(c)(1)-(12) set forth at note 18 supra. 5
AAC 99.012 (1986).ong personal use, sport, guided sport, and
commercial fisheries.").
26 AS 16.05.258(c) set forth at note 18 supra.
27 Ch. 52, 6, SLA 1978; AS 16.05.258(a) (1986) set forth
at note 9 supra.
28 Ch. 52, 11, SLA 1978; AS 16.05.940(25) (1986). Under
the 1992 act this definition is found in AS 16.05.940(27).
29 AS 16.05.258(c)(1)-(12) set forth at note 18 supra.
30 5 AAC 99.012 (1986).
31 In State v. Hebert, 803 P.2d 863 (Alaska 1990), we
upheld against a claim of article VIII violation a system which
frankly was designed to favor local fishermen. Id. at 864.
Under this system, "super-exclusive"districts were imposed in
two Bering Sea sac roe herring fisheries. Fishermen who fished
in one super-exclusive district could not fish for herring in any
other district, super-exclusive or otherwise. Id. Fishermen who
fished in any other district could not participate in either
super-exclusive district. Id. While this system inconvenienced
and limited the fishing options both of fishermen residing
adjacent to each super-exclusive district and those in more
distant locations, we held that the equal access clauses were not
violated. Id. at 866. Both groups had an equal opportunity to
fish in all districts except the super-exclusive districts, or in
one of the super-exclusive districts but no other district. Id.
32 See note 17 supra.
33 See, e.g., AS 16.05.251(e); Tongass Sport Fishing Ass'n
v. State, 866 P.2d 1314 (Alaska 1994); Gilbert v. State, Dep't of
Fish & Game, 803 P.2d 391 (Alaska 1990); Meier v. State, Bd. of
Fisheries, 739 P.2d 172 (Alaska 1987).
34 While we stated in Gilbert that "to satisfy the uniform
application clause of article VIII, state fish and game
regulations creating nonuniform classifications must" have a
legitimate and important purpose and "[t]he means used to further
the important state purpose must be carefully drawn and designed
for 'the least possible infringement on article VIII's open
access values,'"Gilbert 803 P.2d at 399, we did not use this
test in Gilbert. We went on to state that allocation "decisions
are within the power of the Board, so long as they are not
arbitrary and unreasonable and are 'consistent with and
reasonably necessary to the conservation and development of
Alaska fishery resources,'"id. (quoting McDowell, 785 P.2d at
10; Kenai Peninsula, 628 P.2d at 903), and reviewed the
allocation decision in question under this standard.
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