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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. State, Dept of Fish & Game v. Manning (07/06/2007) sp-6138

State, Dept of Fish & Game v. Manning (07/06/2007) sp-6138, 161 P3d 1215

     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) 264-0608, fax (907) 264-0878,
     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA

STATE OF ALASKA, )
DEPARTMENT OF FISH ) Supreme Court Nos. S- 11170/11189
& GAME, )
) Superior Court No.
Appellant/ ) 3AN-00-08814 CI
Cross-Appellee, )
) O P I N I O N
v. )
) No. 6138 - July 6, 2007
KENNETH H. MANNING, )
)
Appellee/ )
Cross-Appellant. )
)


          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Sen K. Tan, Judge.

          Appearances:    Kevin  M.  Saxby,   Assistant
          Attorney  General, Anchorage,  and  Gregg  D.
          Renkes,   Attorney   General,   Juneau,   for
          Appellant  and  Cross-Appellee.   Kenneth  H.
          Manning, pro se, Kasilof, Appellee and Cross-
          Appellant.   Will  Sherman,  Anchorage,   for
          Amicus Curiae Alaska Outdoor Council.

          Before:   Bryner,  Chief  Justice,  Matthews,
          Fabe,  and  Carpeneti,  Justices.  [Eastaugh,
          Justice, not participating.]

          FABE, Justice.
          BRYNER, Chief Justice, dissenting in part.
          MATTHEWS, Justice, dissenting in part.

I.   INTRODUCTION
          Kenneth Manning was denied a Tier II subsistence permit
for  the  2000-2001 Nelchina caribou herd hunt.  Manning  brought
suit, contending that certain aspects of the regulation governing
the  Tier II subsistence hunting permit point system discriminate
against  urban  hunters  in  violation  of  state  constitutional
provisions requiring equal access to natural resources.   Manning
challenged  three  criteria in the regulation  used  to  identify
subsistence hunters eligible for the  Nelchina caribou hunt:  (1)
access to alternative sources of game; (2) the cost of groceries;
and  (3)  the  cost  of  gasoline.  All three  scores  are  based
initially  on the applicants self-reported data, but  are  capped
based  on  composite  data  drawn from the  community  where  the
applicant  resides.  The superior court upheld the food  and  gas
criteria  but held that the alternative sources of game criterion
was unconstitutional.  We affirm.
II.       FACTS AND PROCEEDINGS
          Alaska Statute 16.05.258 governs the allocation of game
in  subsistence  areas.  Under this statute, the  Board  of  Game
identifies  the  portion  of each game  population  that  can  be
harvested  consistent with sustained yield.1  If the  harvestable
portion  of  the  population is not large enough to  satisfy  the
needs  of  all  subsistence applicants, the Board  restricts  the
number  of  subsistence  permits  that  it  issues.2   The   more
restrictive  group  of subsistence permits  are  called  Tier  II
permits.3   The  Board  identifies those  eligible  for  Tier  II
permits through limitations based on (1) the customary and direct
dependence  on  the game population by the subsistence  user  for
human  consumption  as  a  mainstay of livelihood,  and  (2)  the
ability of the subsistence user to obtain food if subsistence use
is restricted or eliminated.4
          5 AAC 92.070 sets out the point system for ranking Tier
II  subsistence  hunting permit applicants.  The more  points  an
applicant receives, the greater the likelihood the applicant will
receive  a  permit.  Subsection (a) describes how to measure  the
applicants customary and direct dependence on the game population
by  the  subsistence user for human consumption as a mainstay  of
livelihood.5  This subsection awards up to fifty points based  on
the number of years the applicant has hunted on or eaten from the
[relevant]  game population, or would have had he been  permitted
to  hunt.6  An additional ten points are available based  on  the
number  of years a member of the applicants household has  hunted
or  eaten  or would have hunted or eaten from the game population
in question.7  Manning, a veteran hunter of Nelchina caribou, was
awarded  the  full  sixty  points under  subsection  (a)  of  the
regulation.  He does not challenge the constitutionality of  this
subsection.
          Subsection (b) of the regulation describes the  process
for measuring the ability of a subsistence user to obtain food if
subsistence  use is restricted or eliminated.8  Under  subsection
(b), points are awarded based on the three criteria challenged in
this  appeal:  access to alternative sources of game, or the game
ratio  (twenty points), the cost of groceries (ten  points),  and
the cost of gasoline (ten points).  Subsection (b) provides:
          The  ability of a subsistence user to  obtain
          food  if  subsistence use  is  restricted  or
          eliminated may provide up to 40 points. It is
          measured  by  the  following  indicators  and
          points:
          
               (1)    the   relative  availability   of
          alternative sources of game to the applicants
          household, which may provide up to 20 points,
          as  measured by the formula Score =  20(I/J),
          in which I/J is the percent of the applicants
          households wild game that came from the  Tier
          II  population over the past five  years,  in
          which  I  stands  for  the  amount  of   game
          harvested  by  hunters  from  the  applicants
          household from the Tier II population  and  J
          stands  for  the amount of game harvested  by
          hunters  from  the applicants household  from
          within the state; I/J may be a percent up  to
          but  not exceeding G/H, in which G stands for
          the  amount of game harvested by hunters from
          the  applicants  location from  the  Tier  II
          population  and H stands for  the  amount  of
          game harvested by hunters from the applicants
          location  from within the hunt area and  from
          all  reasonably accessible game hunts  within
          150  miles,  as calculated by the department;
          before  January  1, 2012, the  provisions  of
          this  paragraph do not apply to Units 22  and
          23 musk oxen hunts;
          
               (2)    the  availability  of  food   for
          purchase in the community where most  of  the
          applicants households store-bought  food  was
          purchased  during the past  year,  which  may
          provide up to 10 points, as calculated by the
          departments   current  Tier  II  cost-of-food
          index;  the number of points received  by  an
          applicant   may   not   exceed   the   points
          calculated by the department using the  cost-
          of-food  index for the community nearest  the
          applicants residence; and
          
               (3)    the  cost  of  gasoline  in   the
          community   where  most  of  the   applicants
          households gasoline was purchased during  the
          past year, which may provide up to 10 points;
          the number of points received by an applicant
          may  not exceed the points calculated by  the
          department using the cost of gasoline for the
          community      nearest     the     applicants
          residence.[9]
          
          Evidence before the superior court provides more detail
about  how this regulation is administered.  The Board calculates
          the food and gas caps from grocery and gas surveys compiled
approximately every other year by the University of Alaska.   The
G/H  game ratio cap is based on the Boards records of Tier II and
other big game kills.  The units used in the ratio are pounds  of
big  game meat, with standard weights ascribed to each kill of  a
particular  type of game.  The Board determines how many  permits
it  can issue for a particular Tier II population in a particular
year  consistent with sustainable yield.  It then scores all  the
applications  and  calculates a minimum cutoff  score  that  will
produce the correct number of permits.10
          Under the current regulatory scheme, Manning received a
Tier  II subsistence permit to hunt Nelchina caribou in the  five
seasons preceding the 2000-2001 season.  Manning applied for, but
did not receive, a permit for the 2000-2001 season.  Questions 14
through  19  of the application for the 2000-2001 hunt  solicited
Mannings Tier II scoring data.  Question 14 asked how many  years
the  applicant had hunted or eaten meat from this particular game
population, or would have hunted this population if permitted  to
do  so.   Manning answered 36 years.  Question 15a asked for  the
maximum  number of years any one living member of the  applicants
household had hunted or eaten from this game population.  Manning
again  answered 36 years.  Question 16 asked what percent of  the
total  amount  of  big game meat that all household  members  had
harvested  over  the past five years within this  hunt  area  and
within  150 miles of the applicants residence came from the  Tier
II   population.    Manning  checked  the  box  marked   91-100%.
Questions 17 and 18 asked in what community the applicant  bought
most  of his food and gasoline.  Manning wrote down Anchorage  in
response to both questions.  In response to question 19,  Manning
stated that Girdwood was his community of principal residence.
          Based  on  his  answers to questions 14 and  15,  which
showed  thirty-six years of hunting Nelchina caribou,  the  Board
gave  Manning  the  full sixty points for  customary  and  direct
dependence on the . . . game population.
          The  next component of Mannings score was based on  the
game ratio.  Had this part of his score been based solely on  the
statement  in his application that 91-100% of the game  harvested
by  his household over the past five years came from the Nelchina
caribou  population,  Manning would have been  awarded  something
close  to the full twenty possible points.11  But Mannings  score
was  capped  at 5.77, the maximum game ratio score  available  to
residents  of Girdwood.  This cap was based on the G/H ratio,  or
the percent of big game meat that hunters from Girdwood harvested
in  the hunt area and within 150 miles of Girdwood that came from
the Nelchina caribou population.12
          The  Board awarded Manning zero out of the twenty total
points  available  based on the cost of food  and  gas.   Manning
received this score because the score for those who purchase most
of  their  food  and  gas in Anchorage is zero.   He  would  have
received the same score if he had stated on his application  that
he purchased most of his food and gas in Girdwood because the cap
for Girdwood residents is also zero.
          Mannings  total  score was 65.77, the highest  possible
score  a  Girdwood resident could get under the regulation.   The
          cutoff for receiving a permit in the 2000-2001 season was
approximately  68.22 points.  Girdwood hunters therefore  had  no
chance  of  receiving the 68.22 minimum score for 2000-2001.  The
residents  of several other communities were also ineligible  for
permits  in  2000-2001 because the caps made  it  impossible  for
these individuals to receive a score above the cutoff.
          In  July 2000 Manning filed suit alleging that the  use
of  the applicants community of residence in awarding points  for
Tier  II  permits violates various provisions of  the  state  and
federal constitutions.  Both parties moved for summary judgment.
          On May 11, 2003, Superior Court Judge Sen K. Tan issued
a summary judgment decision declaring that the game ratio portion
of  the regulation violates sections 3 and 17 of article VIII  of
the  Alaska Constitution, but upholding the food and gas criteria
in    the   regulation.    Both   parties   filed   motions   for
reconsideration.  On June 16, 2003, the superior court issued  an
order  clarifying that its summary judgment decision  applied  to
the  current regulation, which had been amended while the summary
judgment motions were pending.  In this order, the superior court
also  denied the States motion for reconsideration in  all  other
respects and denied Mannings motion for reconsideration.  On July
24, 2003, the superior court entered final judgment declaring the
game ratio portion of the regulation unconstitutional.  The State
appealed and Manning filed a cross-appeal.  Manning contends that
the  food and gas criteria should also be invalidated; the  State
asserts that the game ratio criterion should be reinstated.
III. DISCUSSION
     A.   Standard of Review
          We  review  a grant of summary judgment de novo.13   We
review constitutional questions using our independent judgment.14
     B.        Legal  Framework for Interpreting the Equal Access
               Clauses of Article VIII
               
          Four  provisions from the natural resources article  of
the Alaska Constitution are relevant to this appeal.15  The equal
access clauses are article VIII, sections 3,16 15,17 and 17;18 the
sustained yield clause is contained in article VIII, section 4.19
          McDowell  v. State20 contains what is perhaps our  most
thorough discussion of the equal access clauses as they relate to
statutes and regulations that limit access to subsistence fishing
and hunting activities.  In McDowell, we held that the portion of
the  1986  subsistence statute limiting subsistence  fishing  and
hunting  activities to rural residents violated the equal  access
clauses  of the Alaska Constitution.  Our disposition in McDowell
was based on two alternative grounds.  In Part A of McDowell,  we
established   that  the  subsistence  statutes  overt   residency
requirement   was  per  se  impermissible.   We  explained   that
[a]lthough  [the  prohibition  on  exclusive  rights  or  special
privileges  in]  section  15  pertains  only  to  fisheries,  the
prevention  of  grants  of exclusive or special  privileges  with
respect  to  fish and game is also one purpose of the common  use
and   the   uniform  application  clauses.21   Consequently,   we
concluded,  grant[s] of special privileges with respect  to  game
based on ones residence [are] also prohibited.22
          In   Part  B  of  McDowell,  we  established  that  the
subsistence statutes residency requirement was also impermissible
under  an equal protection type of analysis.  But while  we  held
that  an  equal  protection analysis  was  proper  and  that  the
subsistence  statutes residency requirement could  not  withstand
such an analysis, we did not reach a majority consensus as to the
proper  level of scrutiny to apply.  The plurality opinion  began
by  noting  that the constitution permits the use of a system  to
exclude some, but not all, applicants from subsistence activities
where exclusion is required for species protection reasons.23  In
such  cases,  the opinion went on, assuming that the exclusionary
criterion  is not per se impermissible, . . . demanding  scrutiny
is  appropriate.24   Therefore, [i]n reviewing legislation  which
burdens the equal access clauses of article VIII, the purpose  of
the  burden  must  be  at least important.   The  means  used  to
accomplish  the  purpose must be designed for the least  possible
infringement  on  article VIIIs open access values.25   Employing
this  equal protection analysis, the plurality opinion determined
that  the  interest in ensuring that those Alaskans who  need  to
engage in subsistence hunting and fishing in order to provide for
their  basic necessities are able to do so is an important one.26
The  plurality  opinion  nevertheless  struck  down  the  statute
because the rural-urban criterion was an extremely crude means of
furthering  this  interest given that many  urban  Alaskans  have
legitimate claims as subsistence users and many rural Alaskans do
not.27  However, only two justices adopted the demanding scrutiny
test  in  its entirety.  Justice Rabinowitz dissented  from  both
Parts A and B of McDowell; Justice Compton declined to comment on
Part  B;  and  Justice  Moore wrote separately  to  articulate  a
different and relatively weaker close scrutiny test.
          Like  the  plurality opinion, Justice Moores concurring
opinion  determined  that  access  to  wildlife  for  subsistence
purposes  .  .  .  is [an] . . . important right.28   Unlike  the
plurality  opinion,  however, Justice Moores  concurring  opinion
stopped  short  of  declaring that this important  right  merited
demanding   scrutiny  and  instead  maintained  that  the   [t]he
challenged  enactment . . . should receive close scrutiny.29   As
explained  in  Justice Moores concurring opinion, close  scrutiny
requires  that the statute or regulation in question  be  closely
related to an important state interest.30  Because there was only
a  modest correlation between the set of people who reside[d]  in
areas designated as rural under the Act and the set of people who
[were]  dependent upon subsistence hunting and fishing,31 Justice
Moores  concurring opinion concluded that the Act was not closely
related  to the States interest in ensuring that those  who  must
engage in subsistence hunting and fishing are able to do so.32 As
such,  the  subsistence statutes residency requirement could  not
stand.
          As  we have previously noted, [w]hen a fragmented court
decides  a  case  and no single rationale explaining  the  result
enjoys the assent of [the majority], the holding of the court may
be  viewed  as that position taken by those Members who concurred
in  the judgment on the narrowest grounds.33  In McDowell, it was
Justice  Moore  who concurred on the narrowest  grounds  and  his
          position would therefore ordinarily be considered the courts
holding.   However, Justice Moores concurrence expressly  refused
to  rule  out  the  possibility that a more  stringent  test  was
merited34  and  our subsequent case law has, in fact,  repeatedly
articulated   although  never  actually  applied   the  plurality
opinions stringent demanding scrutiny test.35  Ultimately then, it
is  not  entirely  clear  which  equal  protection  test  carries
precedential weight.
          Because   we   hold  that  (1)  the   game   ratio   is
impermissible under the more lenient close scrutiny test, and (2)
the   food  and  gas  ratios  are  permissible  under  the   more
restrictive demanding scrutiny test, it is unnecessary for us  to
choose today between the two McDowell tests.36
     C.   The Rule Against Residency-Based Criteria
          We first must determine whether the challenged criteria
are  per  se impermissible because they violate the rule  against
residency-based criteria in Part A of McDowell.   Manning  argues
that  the caps based on community of residence as applied  to  an
applicants   game   ratio,  food,  and  gas   scores   constitute
impermissible residency-based restrictions.  We disagree.
          First,  we  note  that as a factual matter  Manning  is
incorrect  in  his  allegation that the regulation  discriminates
against urban hunters and amounts to a reinstatement of the rural
preference stuck down in McDowell and Kenaitze.  Of the 2000 Tier
II  hunting  permits  issued for the 2000-2001  Nelchina  caribou
hunt,  1,493  were issued to Anchorage, Palmer, and Wasilla  area
residents.
          Second,  as  a  matter  of law,  the  criteria  in  the
regulation  are not impermissible residency-based criteria.   The
criteria  struck  down  in  McDowell  and  Kenaitze  created   an
arbitrary  preference based explicitly on where one lived.37   By
contrast,  the  criteria in 5 AAC 92.070(b) seek to  measure  the
applicants relative access to alternative sources of game, store-
bought   food,  and  gasoline.   The  regulation  calls  for   an
individual  determination as to each applicant, and an  applicant
who gets a higher percentage of his game from outside the Tier II
population than his neighbors or who purchases food and gas in  a
cheaper  location will receive a different score than others  who
live  in the same community.  It is true that an applicants  game
ratio, food, and gas scores are capped according to community  of
residence,  but  these  caps  simply  reflect  the  economic  and
geographic realities in Alaska: that location affects  access  to
game  populations and the expense of food and gas.  The only  way
to  eliminate  any reference to residence from a regulation  that
seeks to measure access to alternative game and relative food and
gas  prices  would be to rely solely on individual, self-reported
data that is not verifiable and would in any case still likely be
strongly   correlated  to  an  applicants  place  of   residence.
Virtually  any method of measuring the ability of the subsistence
user  to  obtain  food  if  subsistence  use  is  restricted   or
eliminated  under AS 16.05.258(b)(4)(B)(iii), including  criteria
(such  as  income), that are facially completely  unconnected  to
residence,   will  likely  produce  results  that   are   closely
correlated with residence.  In light of this reality, Part  A  of
          McDowell must be read to prohibit only criteria that are
explicitly  and  exclusively  based  on  residence  because  such
classifications  are  based  on  the  arbitrary  assumption  that
Alaskans  in  certain locations engage in subsistence  activities
while those in other communities do not.
          We  conclude that the residency caps in 5 AAC 92.070(b)
do  not violate the rule against residency-based criteria in Part
A of McDowell.
     D.   Equal Protection Analysis
          McDowells  demanding scrutiny and close scrutiny  tests
both  require  that  restrictions on access to natural  resources
serve  an  important purpose.  One purpose of Alaskas subsistence
statute  and  its  implementing regulations  is  to  ensure  that
Alaskans who need to engage in subsistence hunting and fishing in
order to provide for their basic necessities are able to do so.38
In  McDowell, we held that this interest is an important one  for
the purposes of an equal protection analysis.39  We therefore must
determine  the  fit  between  this  important  interest  and  the
criteria challenged by Manning  the game ratio, the cost of  food
score, and the cost of gasoline score.
          1.   The game ratio
          The  game ratio in 5 AAC 92.070(b)(1) seeks to  measure
the relative availability of alternative sources of game.  Access
to  other  game  is  clearly a reasonable  criterion  to  use  in
determining  an  applicants dependence on   subsistence  hunting.
But Manning argues that the regulations game ratio scoring system
is  not  an accurate method of measuring an applicants access  to
other game.  We agree.
          As  described  in more detail above, 5 AAC 92.070(b)(1)
provides  for  an  applicant to be assigned up to  twenty  points
based on the percent of the applicants households game that  came
from  the  Tier  II  population over the  past  five  years.   An
individual applicants score cannot exceed the game ratio for  his
community  of  residence,  which measures  what  percent  of  the
communitys  total big game catch in the surrounding area  and  in
Nelchina comes from the Nelchina caribou herd.
          As  Judge  Tan  pointed  out in  his  summary  judgment
decision,  the  game  ratio  cap does not  accurately  measure  a
communitys access to alternative game.  The formula assumes  that
hunters actual use patterns reflect the relative availability  of
game  for  a community.  This is not necessarily the case.   Some
local  hunters  may seek out particular Tier II game  populations
for  non-subsistence reasons such as aesthetics, sport, or taste.
A  community may draw much of its game from a particular Tier  II
population  and thus have a high game ratio score even  if  other
sources  of game are readily available.  Relying on use  patterns
may  be  particularly  problematic in smaller  communities  where
hunting   patterns   of  a  small  number  of   individuals   may
significantly affect the communitys game ratio score.40
          The  second problem with the game ratio formula is what
the superior court called the ratcheting effect:  every year that
a  community  is excluded from the Tier II hunt, the  game  ratio
will  go down; after five years of exclusion the game ratio  will
be  zero.  Once a community is excluded because of the game ratio
          cap, no one in that community will be able to secure a permit
unless the State decides to issue more permits.  The State argues
that  the  downward  ratchet  is fair  because  the  only  way  a
community drops out of contention for the permits is if there  is
an  initial  determination  that it  has  access  to  alternative
sources  of game.  But this argument is based on two questionable
assumptions:   that  the communitys game ratio  was  an  accurate
measure  of  alternative resources to begin with,  and  that  the
availability  of  alternative game will remain  stable  once  the
community has been excluded from the Tier II hunt.
          The  game ratio is a structurally infirm and ultimately
inaccurate  method of measuring applicants access to  alternative
food sources. We conclude, therefore, that 5 AAC 92.070(b)(1)  is
not  closely  related  to the States interest  in  ensuring  that
Alaskans who need to engage in subsistence hunting are able to do
so.  As such, the regulation violates sections 3, 15, and  17  of
article VIII of the Alaska Constitution.
          Our  holding  does not imply that it is impossible  for
the  State  to  craft  a  constitutionally acceptable  regulation
measuring  an  applicants alternative sources of game.   To  name
just  one  possibility,  a community cap based  directly  on  the
availability of other big game hunts reasonably accessible  to  a
given community would seem to be a more accurate measure than the
current  regulation.41  Nor does our holding imply  that  such  a
regulation must produce uniformly perfect results.  Our  decision
today  merely holds that the current game ratio regulation is  so
faulty   as  to  not  satisfy  the  requirements  of  the  Alaska
Constitution.
          2.   The food and gas criteria
          Manning also challenges the food and gas criteria in  5
AAC 92.070(b)(2) and (3).  Under the regulation, up to ten points
each  are awarded based on the cost of food and gasoline  in  the
community  where the applicants household purchases most  of  its
food and gas.42  Both scores are capped based on the cost of food
and gas in the applicants community of residence.
          The  cost of groceries is a reasonable way to determine
the applicants access to store-bought food if subsistence use  is
restricted,  and  the  cost of gasoline is a  reasonable  way  to
measure  the applicants ability to access alternative game  hunts
through  gasoline-powered vehicles such as cars and snowmachines.
The  residency caps are also reasonable.  These caps are designed
to  measure  the relative availability of alternative  food;  the
fact  that an individual applicant may purchase most of his  food
in  a  location that is more expensive than where he lives simply
indicates  that  that  applicant is not  making  the  most  cost-
effective  use  of the alternative sources of food  available  to
him.   A community-wide cap makes sense because the cost of  food
and gas in that location is the same for all applicants.
          Manning  argues  that these criteria are  not  narrowly
tailored  because  criteria  based on  income  would  be  a  more
accurate measure of dependence on subsistence hunting.  The Board
rejected using income as a criterion after serious consideration.43
The  primary  difficulty  with an income classification  is  that
there  is  evidence in the record that in rural areas members  of
          wealthier households are often the primary subsistence hunters.
They share their harvest with poorer members of the community who
are  unable to hunt for themselves but who depend on the game  to
meet  their  basic  necessities  of  life.44   Therefore,  income
criteria would not necessarily correspond to the neediness of the
end-consumer of the meat, and income-based classifications  would
not  necessarily be more narrowly tailored than the food and  gas
criteria  for  achieving the States purposes.  Moreover,  income-
based criteria would involve costly and time-consuming evaluation
of individual financial data for thousands of Alaskans.45  To most
precisely  measure an applicants ability to pay for  store-bought
food,  the  Board would have to take into account  not  just  the
applicants taxable income, but other measures of wealth  and  net
worth  in  a complicated calculation similar to college financial
aid  determinations or individualized child support awards  under
Alaska Civil Rule 90.3.
          We  conclude that the food and gas criteria  in  5  AAC
92.070(b)(2) and (3) are narrowly tailored and designed  for  the
least possible infringement on article VIIIs open access values.46
They therefore survive constitutional review even if subjected to
demanding scrutiny.
     E.   Mannings Rule 11 Motion
          During discovery, Manning made requests for admissions.
In a response signed by Board official Steven Schwartz, the State
replied as follows:
               2.   Please admit that plaintiff Kenneth
          H.    Manning   was   automatically    denied
          approximately 34.23 points . . . based on his
          community   of  residence  of  Girdwood   and
          because  he  bought  the  majority   of   his
          groceries and gasoline over the previous year
          in Girdwood and/or Anchorage.
          
               Answer:   Denied.  Mr. Manning  was  not
          automatically denied any points.  His scoring
          was  based on his ability to obtain  food  if
          subsistence   hunting   is   restricted    or
          eliminated.
          
Another  request  asked whether the Board predetermined  a  fixed
amount  of  exclusionary  points for  Girdwood  residents.   This
request  was  also  denied.  Manning sent a letter  to  Assistant
Attorney  General  Kevin Saxby accusing  Schwartz  of  fraud  and
perjury.    Saxby  replied  by  letter,  stating  that   Mannings
accusation was false and that in my opinion, Mr. Schwartz  has  a
cause of action against you for defamation, should he ever decide
to pursue it.  Manning then moved for sanctions against Saxby for
violations  of Alaska Civil Rule 11.  The superior  court  denied
the  motion during oral argument.  Manning appeals the denial  of
that motion.
          Decisions on Rule 11 motions are reviewed for abuse  of
discretion.47  Rule 11 prohibits attorneys from  knowingly filing
pleadings and court papers that are not well grounded in  fact.48
Alaskas Rule 11 no longer provides for mandatory sanctions,49 but
          sanctions may be imposed for a violation of Rule 11 under Civil
Rule  95.50  It was not an abuse of discretion to deny  sanctions
here.    The   use   of  the  words  automatically   denied   and
predetermined a fixed amount of exclusionary points  in  Mannings
requests for admissions were provocative, and the States  denials
to  these questions as worded did not amount to false statements.
Moreover,  the  States responses could not  have  misled  Manning
about the process for reviewing permit applications:  in the same
set  of  responses, the State admitted that residents of Girdwood
could  not  have  achieved  the minimum  successful  score.   The
superior court did not err in denying Mannings Rule 11 motion.51
IV.  CONCLUSION
          We hereby AFFIRM the order of the superior court.
BRYNER, Chief Justice, dissenting in part.
          I disagree with the courts conclusion that Alaskas game-
ratio   provision   violates  the  Alaska   Constitutions   equal
protection  and  uniform  application  clauses.1   As  the  court
correctly  recognizes, the constitutional test we must  apply  is
the  one described in Justice Moores McDowell concurrence.2   But
the  court  misapplies that test here.  In my view,  because  the
challenged  regulation  uses  individualized  criteria  that  are
facially  neutral  and reasonably respond to an  actual  resource
allocation need, the regulation would fail to pass constitutional
muster only if Manning proved that the game ratio resulted in  an
actual  injustice as applied to his case.  He has not  made  this
showing.
          McDowell  considered a subsistence law  that  expressly
discriminated  on  the basis of residency, categorically  denying
subsistence hunting rights to all urban residents.  Moreover, the
law  at  issue  in  McDowell applied at  the  Tier  I  level;  it
restricted  subsistence rights in the absence of a  determination
that   the  restriction  was  necessary  to  protect  subsistence
resources.3    Faced  with  these  circumstances,  the   McDowell
pluralitys  demanding scrutiny test articulated a  constitutional
standard  to  be  used  when  a law not  specifically  driven  by
resource needs favors one group of subsistence users over another
on the sole basis of residency.
          The  justices  who  joined in Part A of  McDowell  took
pains  to emphasize that they did not imply that the constitution
bars  all  methods of exclusion where exclusion is  required  for
species  protection reasons.4  Rather, they held  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.5  McDowell  thus specifically  recognized  that
more latitude to regulate access would be allowed under a Tier II
determination,   when   restrictions  served   actual   resource-
protection needs.
          In  his  concurring opinion, even though  acknowledging
that  the  case presented an overtly discriminatory  geographical
classification scheme,6 Justice Moore articulated a more moderate
understanding  of  Alaskas constitutional standard.   Because  he
believed  that  subsistence rights were similar to the  important
right  to  engage  in  economic endeavor addressed  in  State  v.
Enserch  Alaska Construction, Inc.,7 Justice Moore used the  same
mid-level  scrutiny test we adopted in Enserch.8  This test  asks
whether  the  challenged law is closely related to  an  important
state  interest.9   In  light of the challenged  laws  overt  and
exclusive  reliance on the distinction between  urban  and  rural
residency,  Justice Moore found that its means were  not  closely
related  to  its  goals.   Yet at the same  time,  Justice  Moore
stressed that [a] law providing for individual determinations  of
eligibility  would  in my view be sufficiently  tailored  to  the
states  interest  to withstand a constitutional challenge.10   As
already noted, Justice Moores view on this point governs here.11
          Unlike  the  law disputed in McDowell, the  subsistence
regulation now at issue, 5 AAC 92.070, was adopted in response to
          a Tier II determination and thus serves a specific resource-
protection   need.    Furthermore,   the   regulation   uses   an
individualized,  facially  neutral point  system  in  determining
eligibility    not   an   overtly   discriminatory   geographical
classification  scheme.12   Nothing in  Justice  Moores  McDowell
concurrence  suggests  that a rational, individualized,  Tier  II
regulation  of this kind could be deemed too loosely tailored  to
pass facial constitutional muster merely because, in theory,  one
of its measurements might not always perfectly fit its goal.
          Nor  does  any post-McDowell case suggest the need  for
such  a  demanding means-to-end fit.  In fact, our  post-McDowell
case law suggests the opposite.  In Gilbert v. State,13 which the
opinion  cites  as re-articulating the McDowell pluralitys  least
possible  infringement  test,14 this court  actually  refused  to
apply any form of the McDowell test, even Justice Moores moderate
close relationship requirement.
          Like   McDowell,   Gilbert  involved  a  constitutional
challenge  to a regulation that, on its face, adopted an  overtly
discriminatory  classification  a commercial  fishing  regulation
that  favored  the  salmon fishery in Chignik over  a  competing,
mixed-stock interceptor fishery in Stepovak in which most  salmon
were headed for their natal streams around Chignik.15
          While  McDowell  had described this  sort  of  facially
disparate  treatment  as a geographical classification  scheme,16
Gilbert  referred  to  it  as  a non-uniform  classification[].17
Citing McDowell and other Alaska cases, Gilbert acknowledged that
an  analysis  under  [the Uniform Application Clause  of  article
VIII]  may invoke more stringent review. 18  Gilbert went  on  to
observe  that  the  more stringent test applies  when  the  court
reviews   fish   and   game  regulations   creating   non-uniform
classifications.19  But the court in Gilbert nonetheless declined
to  apply  this  stringent test to the non-uniform classification
before  it  because  the competing fisheries were  not  similarly
situated.  The court instead emphasized that [t]he regulation  in
question reflects an allocation decision authorized under article
VIII,  section 4 of the state constitution which the  Board  must
necessarily make between users involved in different fisheries.20
On  this basis, Gilbert held that the regulations provisions were
therefore  subject  to conventional rational-basis  review:  Such
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. 21
          In  effect, then, Gilbert recognized that, even when  a
fish   and   game   regulation  creates  an  openly   non-uniform
classification, the conventional rational-basis standard  applies
if the regulation deals with an issue of resource allocation that
article  VIII, section 4 allows the board to address and  if  the
board  finds  that existing circumstances make  it  necessary  to
decide  the issue.  The situation here is functionally  identical
to  the  one  in Gilbert: because this case involves  a  Tier  II
determination,  the disputed regulation addresses  an  allocation
decision  that  article VIII authorizes and that the  Board  must
necessarily  make22 in order to preserve scarce  game  resources.
          Under Gilbert, it follows that the classifications at issue here
identify  competing resource users who are not similarly situated
and  that  the regulation must accordingly be reviewed under  the
conventional rational basis test.
          But  even  if  Gilbert did not dictate this conclusion,
Justice  Moores concurring opinion in McDowell would  require  no
more  than  the moderately heightened equal protection review  we
applied in Enserch, which demands a close but not perfect  means-
to-end  fit.   Under either approach  Gilberts or Justice  Moores
there would be no reason to declare the game ratio invalid.
          Todays   opinion  implicitly  acknowledges   that   the
challenged regulation is a facially neutral provision  and  seems
to  agree  that  the game ratio serves an important  purpose:  to
assess the availability of alternative game resources in a  given
community.23   The opinion identifies no reason to  suspect  that
the  game  ratios neutral requirements might conceal an invidious
discriminatory  intent.   And it points  to  no  record  evidence
showing  that it generally produces arbitrary results or actually
resulted  in  unfairness  here.  Instead,  based  solely  on  the
theoretical  possibility that the ratios formula may  be  .  .  .
problematic in smaller communities or that its ratcheting  effect
might   reflect  questionable  assumptions,  the  court   broadly
declares  the  game  ratio  structurally  infirm  and  ultimately
inaccurate,24    and    categorically    invalidates    it     as
unconstitutional in all applications.
          This  proclamation  turns  the  usual  presumption   of
constitutionality  on  its  head  by  requiring  the   state   to
demonstrate  that  a  seemingly reasonable  (though  perhaps  not
invariably  perfect)  regulation actually  works  in  practice.25
More  fundamentally,  it  misapplies  the  McDowell  concurrences
moderately  heightened  equal  protection  standard:  instead  of
inquiring  whether  the  game  ratio  is  reasonably  suited   to
achieving  its  goal, and thereby results in a  reasonably  close
means-to-end fit, the courts approach leaves no room for slippage
or error.  By proclaiming the ratio to be structurally infirm and
ultimately  inaccurate  as  a matter of  law  merely  because  it
theoretically  might produce an anomalous result  in  a  marginal
case,  todays  opinion  effectively  applies  a  test  even  more
demanding  than the least-restrictive-alternative test  discussed
by the McDowell plurality.
          In addition to straying from the settled analysis under
McDowells concurrence, moreover, the opinion breaks sharply  from
the  established  standard for declaring a  law  to  be  facially
unconstitutional   that  is, invalid in all  applications  rather
than  just in the way it applies to the particular case at  hand.
As  this  court  has recently recognized, even  under  a  relaxed
standard of facial review it would be improper to declare [a law]
invalid  on  its  face if it has a plainly legitimate  sweep.  26
Accordingly, there would be no basis for declaring the game ratio
to  be  facially  invalid unless Manning showed  either  that  it
arbitrarily discriminated on the basis of residency  in  many  or
most situations, and thus had no plainly legitimate sweep.
          Here, Manning produced no evidence to support a finding
of  general invalidity, and todays opinion makes no such finding.
          The assumptions and structural defects that the opinion
identifies as potentially flawed would at most create a  risk  of
appreciable error only in exceptional situations.27  And even  if
exceptional circumstances suggested the presence of a significant
risk  of error with respect to a particular community or Tier  II
permit, these circumstances would not necessarily establish  that
the  game  ratio had inaccurately measured available  alternative
sources  of game; instead, they would merely indicate a  possible
inaccuracy  that  would  warrant  further  investigation   before
deciding whether to grant or deny the disputed permit.
          Admittedly,  Mannings case presents some  circumstances
suggesting  that the game ratio might have produced a statistical
anomaly  in  his case.  To this extent, todays opinion  correctly
observes  that  the states decision to deny Mannings  application
might  reflect potentially questionable assumptions.  But whether
this  potential  for inaccuracy actually produced  an  inaccurate
result  is  subject  to  reasonable  dispute.   The  state,   for
instance,  insists  that in Mannings situation,  the  game  ratio
actually did what it was supposed to do: it accurately determined
that Manning had alternative sources of game within easy reach.
          In  my  view,  this factual dispute calls for  a  case-
specific resolution.  On the one hand, if Manning shows that  the
game ratio probably did produce an anomalous result as applied in
his  case,  then  the  state should be  barred  from  relying  on
subsection  .070(b)(1) to deny permits to Manning  and  similarly
situated  Girdwood  residents.  On the other hand,  absent  proof
that  the game ratio inaccurately reflected Mannings ready access
to  alternative sources of game, I see no basis for  barring  the
state  from applying the ratio to him  or anyone else.  As todays
opinion  recognizes, Manning is similarly situated to  applicants
who  were  granted  a Nelchina permit only if he  is  correct  in
asserting  that  the regulations in question are unconstitutional
because  they  are  an  inaccurate  means  of  determining  which
applicants  have  access to alternative food  sources.28   Absent
proof that the game ratio lacks a plainly legitimate sweep, then,
it follows that Manning should at a minimum have been required to
show   a   likelihood  that  the  regulation  actually   produced
inaccuracy as applied to his situation.
          Yet   the  superior  court  did  not  decide,  or  even
consider, whether applying subsection .070(b)(1) to Mannings case
would  actually cause injustice in his situation.   Instead,  the
court summarily struck the regulation as unconstitutional in  all
applications  based  on  a  speculative  risk  of  inaccuracy  in
seemingly  marginal applications.  Because this ruling  converted
the  ratios  potential  but  unproved inaccuracy  in  exceptional
situations  into  an unwarranted facial disqualification  in  all
applications,  I  would  reverse and remand  for  an  evidentiary
hearing to determine whether the regulation actually did unfairly
deny Manning his Tier II permit.
          I  therefore dissent from todays opinion upholding  the
superior courts judgment.
MATTHEWS, Justice, dissenting in part.
          The  main question posed by this case is whether 5  AAC
92.070(b)(1),  (2),  and  (3),  which  enumerate   criteria   for
determining  who qualifies for Tier II subsistence hunt  permits,
are  valid.   I  conclude  that none of the  challenged  criteria
contribute    to    the   statutorily   required   individualized
determination of which applicants most need a subsistence  permit
to   meet  their  food  needs.   The  regulations  are  therefore
inconsistent  with  the  subsistence use statute  and  should  be
invalidated.
          This  appeal involves a challenge to regulations 5  AAC
92.070(b)(1),  (2),  and  (3).   Normally,  when   reviewing   an
administrative  regulation, this court limits its examination  to
(1)  whether the regulation is reasonable and not arbitrary;  and
(2)  whether  the regulation is consistent with the  statute  and
reasonably  necessary to its purposes.1  While a  rational  basis
standard would apply if the issue involve[d] agency expertise  or
the  determination  of fundamental policy questions  on  subjects
committed to an agency, generally, as here, determining whether a
regulation  is  consistent  with  a  statute  is  a  question  of
statutory interpretation to which we should apply our independent
judgment.2   We  reach constitutional issues  only  when  a  case
cannot  be fairly decided on statutory or other grounds.3   Since
in my view none of the challenged regulations are consistent with
the  subsistence  use statute, we need not  reach  the  issue  of
whether or not the regulations are constitutional.
          The   subsistence  use  statute  requires   that   when
determining   which  subsistence  uses  to   allow,   the   Board
distinguish  among  subsistence  users4  in  part  by  making   a
determination about the ability of the subsistence user to obtain
food  if  subsistence use is restricted or eliminated.5  As  this
language  indicates,  the  statute requires  the  Board  to  make
individualized, user-by-user determinations of who is  best  able
to obtain food from non-subsistence sources.
          None of the challenged regulations assist the Board  in
making  the  statutorily required individualized  determinations.
The  game  ratio  in  5  AAC 92.070(b)(1)  does  not  advance  an
individualized  determination of who can  best  obtain  alternate
food  in  part because, as Judge Tan pointed out, it  is  not  an
accurate  method of measuring access to other game.6   The  other
two challenged portions of the regulation, 5 AAC 92.070(b)(2) and
(3), which award points that are capped according to the cost  of
food  and  gasoline  in  the  community  nearest  the  applicants
residence, presume that an individuals ability to secure food  is
governed  by  community-based costs.  While food and  fuel  costs
undoubtedly  have  a  slight impact on an applicants  ability  to
obtain  food, differentials in prices are much less determinative
of  a  subsistence applicants ability to access other sources  of
food than are differentials in income.7
          In   McDowell  v.  State,  we  acknowledged  that   the
subsistence use statute then in effect had the important  purpose
of   ensur[ing]  that  those  Alaskans  who  need  to  engage  in
subsistence  hunting and fishing in order to  provide  for  their
basic  necessities  are able to do so.8  We  concluded  that  the
          urban/rural distinction drawn by the statute was an extremely
crude  means  to accomplish this purpose.9  While the subsistence
use  statute has changed somewhat in the intervening  years,  its
purpose  of  ensuring that Alaskans who need to  are  allowed  to
engage in subsistence activities remains the same.  The food  and
gas  criteria, just like the rural/urban criterion, are extremely
crude   means  of  determining  who  most  needs  to  engage   in
subsistence  activities.  In my opinion they are of  such  slight
relevance  to  the  question  of  individual  need   as   to   be
inconsistent  with  the  purpose of  the  statute.   Because  the
criteria  fail  to  withstand  the standard  of  review  normally
applied to regulations, they should be invalidated.
          In  order to advance the statutes purpose of making  an
individualized determination of who among subsistence  applicants
is  least  able to access alternative sources of food, the  Board
needs  to take into account applicants income.  While it  is  the
province of the Board to draft new regulations, one way  for  the
Board to obtain income information would be to ask applicants  to
list their adjusted gross income as reported on their most recent
tax return.10
          The  state  and subsistence users have raised  concerns
about the fairness and feasibility of using income as a criterion
for  determining which applicants receive Tier  II  permits.   An
income-based criterion can be structured to address many  of  the
concerns  raised.  For instance, since the cost  of  living  does
affect  (although  it does not determine) a  persons  ability  to
obtain  food,  the Board could decide to adjust  each  applicants
income  to account for cost-of-living differentials.  As for  the
point  that members of wealthier rural households are  often  the
primary subsistence hunters who then share with poorer members of
the  community, the Board can create regulations that  take  into
account the income of those who rely upon the applicant for food.
If the Board is worried about applicants manipulating the process
by  having  poorer household members apply for  permits,  it  can
order occasional audits to make sure that those people doing  the
hunting are the ones in whose names the permits were issued.
          Many of the objections made to an income criterion  are
also  overstated.   For  instance, an  income  criterion  is  not
uniquely   manipulable.   Under  a  portion  of  the  subsistence
regulations not challenged in this appeal, the Board already asks
applicants to report how long they have hunted or eaten meat from
a specific game population. This presents a ready opportunity for
the unscrupulous to stretch the truth.  An income criterion would
serve  as an improvement, since applicants will be less  able  to
mislead when their answers are easily verifiable by reference  to
their   tax  returns.   When  the  Board  considered  an   income
criterion,  it  also expressed concerns that  asking  for  income
information would compromise the privacy interests of applicants.
However,  the  Tier  II  Subsistence Hunting  Permit  Application
already asks applicants to provide their social security numbers,
which  are  also sensitive personal information.  Presumably  the
Board  has  privacy safeguards in place that could be applied  to
income information.
          Finally,  the  Board has objected to the administrative
          burden it believes an income criterion would create.  In the
words of one Department of Fish and Game analyst, [w]e dont  want
to  be in the business of collecting income tax return forms  for
20,000  Alaskans and  and process that every year.   However,  an
income criterion would not necessarily result in the Board  being
inundated  by  tax  returns  from all applicants.   Having  asked
applicants  both to include their adjusted gross  income  on  the
permit  application form and to provide the Board with permission
to  obtain  a copy of the applicants tax return, the Board  could
limit  its  acquisition of tax returns to those circumstances  in
which it wished to verify an applicants income response.
          For  the reasons stated, the challenged regulations are
not  consistent with the subsistence use statute.  They therefore
should be invalidated.
_______________________________
     1    AS 16.05.258(b).

     2    AS 16.05.258(b)(4)(B).

     3    5 AAC 92.062(a).

     4     5  AAC  92.062(a).   This  regulation  implements  the
portion  of  AS 16.05.258(b)(4)(B) that is currently  in  effect.
The  statute  includes a third criterion, the  proximity  of  the
domicile  of  subsistence  user to the stock  or  population,  AS
16.05.258(b)(4)(B)(ii),  but  this  criterion  has   been   found
unconstitutional  and is no longer in force.  State  v.  Kenaitze
Indian Tribe, 894 P.2d 632, 638 (Alaska 1995).

     5    5 AAC 92.070(a); AS 16.05.258(b)(4)(B)(i).

     6    5 AAC 92.070(a)(1).

     7    5 AAC 92.070(a)(2).

     8    5 AAC 92.070(b); AS 16.05.258(b)(4)(B)(iii).

     9    5 AAC 92.070(b).  This is the version of the regulation
in  effect  when  the  superior court  issued  its  decision  and
discussed  by  the  parties in their  briefs.   A  prior  version
applied  when  the summary judgment motions were filed,  but  the
superior court held that there is no material distinction between
the  two  forms of the regulation.  The parties do not appear  to
dispute this determination.

     10    5 AAC 92.062(b).  If the number of applicants with the
next highest score  below the cutoff score exceeds the number  of
remaining  permits, a random drawing is used  to  allocate  these
permits.

     11    Under 5 AAC 92.070(b), an individuals score before the
cap  is applied is  calculated by the formula 20(I/J), where  I/J
is  the percent of the applicants households wild game that  came
from  the Tier II population over the past five years, or 91-100%
in Mannings case.

     12    5 AAC 92.070(b).

     13    Koyukuk River Basin Moose Co-Management Team v. Bd. of
Game, 76 P.3d 383, 385 (Alaska 2003).

     14    Legislative Council v. Knowles, 988 P.2d 604, 607 n.11
(Alaska 1999).

     15     The parties to this case have focused their briefings
and oral arguments almost exclusively on constitutional concerns,
and  we  have  drafted  our opinion to  be  responsive  to  these
concerns.   However, as the dissent authored by Justice  Matthews
correctly   asserts,   it  is  our  usual   practice   to   defer
consideration of constitutional issues until we have reviewed and
dismissed  the potential statutory grounds for deciding  a  case.
See  State,  Dept of Health & Soc. Servs. v. Valley  Hosp.  Assn,
Inc.,  116  P.3d  580, 584 (Alaska 2005).  We  therefore  briefly
pause to note that our holding today would not be affected  by  a
consideration of the statutory issue raised by this case  namely,
whether the challenged ratios represent a valid exercise  of  the
Boards   authority  under  the  subsistence  use   statute.    AS
16.05.258.   First, because we conclude that the  game  ratio  is
unconstitutional,  that ratio cannot be sustained  regardless  of
whether  or  not it is a valid exercise of the Boards  authority.
Second, because we conclude that both the food and gas ratios are
a  constitutionally  accurate means  of  differentiating  between
Alaskans  who need to subsistence hunt or fish and those  who  do
not, there is no reason to suspect that these ratios are not also
accurate  enough  to be consistent with the Boards  authority  to
distinguish between Alaskans on the basis of their ability . .  .
to  obtain  food if subsistence use is restricted or  eliminated.
AS 16.05.258(b)(4)(B)(iii).

     16      Article  VIII,  section  3  provides:   Common  Use.
Wherever  occurring in their natural state, fish,  wildlife,  and
waters are reserved to the people for common use.

     17    Article VIII, section 15 provides:  No Exclusive Right
of  Fishery.  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.

     18      Article   VIII,   section  17   provides:    Uniform
Application.  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.

     19     Article  VIII, section 4 provides:  Sustained  Yield.
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.

     20    785 P.2d 1 (Alaska 1989).

     21    Id. at 9.

     22     Id.  Similarly, in Kenaitze Indian Tribe, 894 P.2d at
639, we struck down AS 16.05.258(b)(4)(B)(ii)  the portion of the
Tier II statute that would have made proximity of the domicile of
the  subsistence user to the stock or population a criterion  for
qualifying  for  subsistence use.  Noting  that  our  opinion  in
McDowell  makes  it clear that residence-based criteria  are  not
permissible,  we held that under the reasoning of  McDowell,  the
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.  Id.  We determined that this criterion could be
severed  from the Tier II subsistence statute, leaving  in  force
the criteria based on customary and direct dependence on the fish
stock or game population and the ability of the subsistence  user
to  obtain  food if subsistence use is restricted  or  eliminated
under AS 16.05.258(b)(4)(B)(i) and (iii).  Id. at 639.

     23    McDowell, 785 P.2d at 9.

     24    Id.

     25    Id. at 10.

     26    Id.

     27    Id. at 10-11.

     28    Id. at 13 (Moore, J., concurring and dissenting).

     29    Id.

     30    Id.

     31    Id.

     32    Id.

     33     In  re Adoption of Erin G., 140 P.3d 886, 890 (Alaska
2006)  (quoting Marks v. United States, 430 U.S. 188, 193 (1977))
(internal quotations omitted).

     34    McDowell, 785 P.2d at 13 n.1 (Moore, J., concurring and
dissenting) (noting [i]t may be that the enactment should receive
even  greater  scrutiny  under  the uniform  application  clause;
however, the court has not decided that question).

     35    See Kenaitze Indian Tribe, 894 P.2d at 641 (recognizing
that  the  more rigorous least restrictive alternative test  [is]
employed  in  cases where entry into a user class is restricted);
Gilbert  v. State, 803 P.2d 391, 399 (Alaska 1990) (stating  that
in  order [t]o satisfy the uniform application clause of  article
VIII,  state  fish  and  game  regulations  creating  non-uniform
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  VIIIs open access values) (internal  quotations  and
citations omitted).

     36     The dissent authored by Chief Justice Bryner contends
that  neither  McDowells demanding scrutiny test  nor  its  close
scrutiny test are applicable to the case at hand.  In support  of
this contention, the dissent characterizes Gilbert, 803 P.2d 391,
as  holding,  [i]n  effect, that the conventional  rational-basis
standard  applies  if  the regulation  deals  with  an  issue  of
resource allocation that article VIII, section 4 allows the board
to  address  and  if the board finds that existing  circumstances
make  it  necessary to decide the issue.  Bryner Dissent  at  28.
Based upon this characterization, the dissent goes on to conclude
that  because  the  case at hand involves an allocation  decision
that  article VIII authorizes and that the Board must necessarily
make   it   like  the regulation in Gilbert  should  be  reviewed
under the conventional rational basis test. Bryner Dissent at 28.
However,   the  dissent  misconstrues  our  holding  in  Gilbert.
Gilbert did not identify a new occasion for applying the rational
basis  test;  and  it  did  not create  a  new,  lower  level  of
constitutional scrutiny for regulations that are  necessary.   To
the  contrary,  Gilbert actually re-articulated a more  stringent
test.  See id. at 399 (stating that the statute or regulation  in
question  must  be  carefully drawn and designed  for  the  least
possible  infringement  on  article  VIIIs  open  access  values)
(internal  quotations omitted).  We applied  the  rational  basis
test  to  the  regulation challenged in Gilbert not  because  the
regulation  was necessary, but because the fisheries affected  by
the  regulation  were not similarly situated.   As  we  noted  in
Gilbert, section 17 of the Alaska Constitution  like other  equal
protection-based  provisions   only  applies  to  those  who  are
similarly  situated.   Id. (noting that the Stepovak  fishery  is
not similarly situated to the Chignik fishery and concluding that
article  VIII,  section 17 does not apply  to  this  case).   Our
reasoning  in  Gilbert was not novel and we have reached  similar
conclusions in other cases.  See Baxley v. State, 958  P.2d  422,
429-30 (Alaska 1998) (holding that the uniform application clause
was  not  violated  [b]ecause  no other  entity  [was]  similarly
situated);  Tongass Sport Fishing Assn v. State, 866  P.2d  1314,
1318 (Alaska 1994) (upholding a salmon harvesting regulation that
gave   preference  to  commercial  fishers  because   sport   and
commercial fishers are not similarly situated).  In the  case  at
hand,  Manning  asserts  that  the regulations  in  question  are
unconstitutional  because  they  are  an  inaccurate   means   of
determining  which  applicants have access  to  alternative  food
sources.   If he is correct, then the regulations treat similarly
situated applicants dissimilarly.

     37    See Kenaitze, 894 P.2d at 633; McDowell, 785 P.2d at 1-
2.

     38     Subsection  (b)(4)(B)(iii) of  the  enabling  statute
orders  the  Board  to devise regulations that distinguish  among
subsistence users based on their ability . . . to obtain food  if
subsistence    use    is   restricted    or    eliminated.     AS
16.05.258(b)(4)(B)(iii); cf. McDowell,  758  P.2d  at  10  ([o]ne
purpose  of  the 1986 [subsistence] act is to ensure  that  those
Alaskans who need to engage in subsistence hunting and fishing in
order to provide for their basic necessities are able to do  so).
The statute and regulations may have other purposes as well, such
as  preserving a traditional culture and way of life.  Subsection
(B)(i)  of  the  enabling  statute orders  the  Board  to  devise
regulations  that distinguish among subsistence  users  based  on
their  customary and direct dependence on the fish stock or  game
population.  AS 16.05.258(b)(4)(B)(i) (emphasis added).

     39    785 P.2d at 10.

     40     This problem may be mitigated, but not eliminated, by
the  use of five-year averages and lumping very small communities
with neighboring communities for purposes of the calculation.

     41    To avoid running afoul of Part A of McDowell, this cap
would  have  to  be  used  in  tandem with  individual  applicant
responses, as is done in the current regulation.

     42    The food and gas scores are calculated separately, and
applicants may report that the location where they purchase  most
of their food is not the same as the location where they buy most
of their gas.

     43     In  addition  to  the  difficulties  with  an  income
criterion  we discuss, the Board rejected the income approach  in
part  because  both rural and non-rural hunters strongly  opposed
disclosing  their  income to the Board  on  privacy  grounds  and
because  of concern that applicants would manipulate the  process
by  having  poorer  members  of their  household  apply  for  the
permits.

     44     See Sophie Th‚riault et al., The Legal Protection  of
Subsistence:  A Prerequisite of Food Security for  the  Inuit  of
Alaska,  22 Alaska L. Rev. 35, 68 & n.199 (2005) (noting that  in
some  Native  communities subsistence harvests are  shared  among
every member in the community and that [t]he best hunters .  .  .
share  what  is left with relatives, older people, families  with
sick  and injured hunters, and others who need the meat) (quoting
testimony  of Robert Newlin, an Inupiat elder, before  the  State
Board of Game).

     45     At  a Board hearing where the Tier II regulation  was
discussed, a research analyst for the Department of Fish and Game
stated, [w]e dont want to be in the business of collecting income
tax  return forms for 20,000 Alaskans and  and process that every
year.

     46    McDowell, 785 P.2d at 10.

     47    Keen v. Ruddy, 784 P.2d 653, 658 (Alaska 1989).

     48    Rule 11 provides, in pertinent part:  The signature of
an attorney or party [on a pleading, motion, or other paper of  a
party  represented by an attorney] constitutes a  certificate  by
the  signer  that  the signer has read the pleading,  motion,  or
other   paper;  that  to  the  best  of  the  signers  knowledge,
information,  and belief formed after reasonable  inquiry  it  is
well  grounded in fact and is warranted by existing law or a good
faith  argument for the extension, modification, or  reversal  of
existing  law. . . .  Alaska R. Civ. P. 11.  Unlike Federal  Rule
of  Civil  Procedure  11,  Alaskas  rule  does  not  provide  for
sanctions.

     49     See  Alaska  State  Employees  Assn  v.  Alaska  Pub.
Employees  Assn,  813  P.2d 669, 671 n.4  (Alaska  1991)  (citing
Alaska  Supreme Court Order 1009 (Oct. 12, 1989) (effective  date
Jan.  15,  1990))  (noting  that a  1989  amendment  deleted  the
mandatory sanctions provision from Rule 11).

     50     Cf.  In  re Schmidt, 114 P.3d 816, 820 (Alaska  2005)
(holding  that  penalties provided in Rule 95 for  violations  of
these  rules  apply to violations of the Alaska  Rules  of  Civil
Procedure).

     51    Manning also appeals the denial of his multiple motions
to  remove Judge  Tan from the case.  Manning asserts that  Judge
Tan  should be removed because he allegedly committed legal error
in  a  previous order.  Legal error is not among the grounds  for
disqualification  of  a  judicial  officer  for  cause  under  AS
22.20.020.  The proper recourse for a litigant who  believes  the
superior  court  has  committed legal  error  is  to  appeal  the
superior  courts  decision.  We therefore affirm  the  denial  of
Mannings motions to remove Judge Tan from the case.

1    Alaska Const. art. I,  1; art. VIII,  17.

     2     Slip  Op. at 12 (discussing Justice Moores concurrence
in McDowell v. State, 785 P.2d 1, 12-14 (Alaska 1989)).

     3     See  McDowell, 785 P.2d at 1-2 (describing  challenged
subsistence fishing and hunting provisions).

     4    Id. at 9.

     5    Id.

     6    Id. at 12 (Moore, J., concurring).

     7     State  v. Enserch Alaska Constr., Inc., 787  P.2d  624
(Alaska 1989).

     8    McDowell, 785 P.2d at 13 (Moore, J., concurring).

     9    Id.

     10   Id.

     11    See  In  re  Adoption of Erin G., 140  P.3d  886,  890
(Alaska 2006) ( [W]hen a fragmented court decides a case  and  no
single rationale explaining the result enjoys the assent of  five
Justices, the holding of the court may be viewed as that position
taken  by  those  Members who concurred in the  judgment  on  the
narrowest  grounds. ) (quoting Marks v. United States,  430  U.S.
188, 193 (1977)).

12   Cf. McDowell, 785 P.2d at 12 (Moore, J., concurring).

     13   Gilbert v. State, 803 P.2d 391 (Alaska 1990).

     14   Slip Op. at 13 n.36.

     15   Gilbert, 803 P.2d at 393, 398-99.

     16   McDowell, 785 P.2d at 12 (Moore, J., concurring).

     17   Gilbert, 803 P.2d at 399.

     18   Id. at 398 (citing McDowell, 785 P.2d at 10).

     19   Id. at 399.

     20   Id. (footnote and citations omitted).

     21   Id. (quoting Meier v. State, Bd. of Fisheries, 739 P.2d
172,  174  (Alaska  1987)  (applying rational-basis  standard  of
review)).

     22   Cf. id.

23   Slip Op. at 16-17.

     24   Slip Op. at 17-18.

     25    Cf. Treacy v. Municipality of Anchorage, 91 P.3d  252,
260  (Alaska 2004) (A duly enacted law or rule . . . is  presumed
to  be constitutional.) (citing Kodiak Island Borough v. Mahoney,
71 P.3d 896, 899-900 (Alaska 2003)).

     26    Id. at 260 n.14 (quoting Troxel v. Granville, 530 U.S.
57, 85 (2000) (Stevens, J., dissenting)).

     27    As  the  opinion notes, the ratio may be  particularly
problematic in smaller communities where hunting patterns and the
ratios  ratcheting effect combine to exclude all members  of  the
community from a Tier II hunt in perpetuity.  See Slip Op. at 17-
18.

     28   Slip Op. at 13 n.36.

1     Lauth  v.  State, 12 P.3d 181,184 (Alaska  2000)  (internal
quotation marks omitted).

     2    OCallaghan v. Rue, 996 P.2d 88, 94 (Alaska 2000).

     3     State,  Dept of Health & Soc. Servs. v.  Valley  Hosp.
Assn Inc., 116 P.3d 580, 584 (Alaska 2005).

     4    AS 16.05.258(b)(4)(B).

     5    AS 16.05.258(b)(4)(B)(iii).

     6     5 AAC 92.070(b)(1) also violates article VIII, section
3 of the Alaska Constitution.  In State v. Kenaitze Indian Tribe,
we  explained that because section 3 reserves to the  people  for
common  use  wild  fish  and game [w]herever  occurring,   it  is
particularly  strong in requiring that proximity to the  resource
be  a  neutral  factor. 894 P.2d 632, 638-39, n.21 (Alaska  1995)
(quoting  Alaska Const. art. VIII,  3).  Based on section  3,  we
concluded in Kenaitze that eligibility to participate in Tier  II
subsistence hunting and fishing cannot be based on how close  one
lives  to  a  given fish or animal population. Id.  at  638.   As
currently  written,  5 AAC 92.070(b)(1) provides  a  cap  on  the
number  of points an applicant for a Tier II permit can  receive.
The  cap is determined in part by the amount of game hunters from
the applicants community harvested from all reasonably accessible
game  hunts,  with reasonably accessible defined  as  within  150
miles.   It  is  true that the proximity factor  employed  by  AS
16.05.258(b)(4)(B)(ii), which we invalidated in Kenaitze, and the
factor used in 5 AAC 92.070(b)(1) are calculated differently:  AS
16.05.258(b)(4)(B)(ii)  denied  applicants  Tier  II  subsistence
permits if they resided too far away from a specific fish or game
population,   whereas  5  AAC  92.070(b)(1)  operates   to   deny
applicants permits if they live too close to alternative fish  or
game   populations  frequently  harvested  by  members  of  their
community.   Despite  the differences in  calculation,  both  the
previously  invalidated portion of the statute and the  currently
challenged  regulation  involve  consideration  of  impermissible
proximity factors and are, in my opinion, unconstitutional.   The
plurality  opinions proposed alternative for 5 AAC  92.070(b)(1),
namely  a  community  cap based directly on the  availability  of
other  big game hunts reasonably accessible to a given community,
(Slip  Op.  at  18) operates to make the impermissible  proximity
calculation  even more obvious and does nothing  to  correct  the
constitutional infirmity.

     7     This  can be understood by thinking about two  people,
one living in Anchorage and one living in Dillingham, a community
where food costs much more than it does in Anchorage.  University
of  Alaska Fairbanks Cooperative Extension Service, Cost of  Food
at   Home  for  a  Week  in  Alaska  (June  1999),  available  at
http://www.uaf.edu/coop-ext/fcs/FCS_June_1999.htm  (listing   the
cost to feed a family of four for a week as $100 in Anchorage  as
opposed to $174 in Dillingham, which amounts to $5,200 and $9,048
a  year, respectively).  If the person in Dillingham is a  member
of  one of the communitys 150 households with an annual income of
over  $100,000, that person has a much better ability  to  obtain
food, even with the difference in food prices, than does a member
of  one  of  the  11,822 households in Anchorage with  an  annual
income of less than $20,000 a year.  U.S. Census 2000 data  about
household       income      in      1999,      available       at
http://factfinder.census.gov.  Specifically, in  these  examples,
the  Dillingham resident must expend only about 9%  of  household
income for food, whereas food expenses for the Anchorage resident
amount to 28% or more of household income.
          The  same  analysis  applies if one compares  Anchorage
with  communities in the Copper River Basin.  People in  both  of
these  areas have easy access to the Nelchina caribou  herd,  the
game  population  that has prompted the litigation  in  this  and
other  cases.   The difference in how much it  costs  to  feed  a
family of four in Anchorage ($5,200 a year) and the Copper  River
Basin  ($6,292 a year) is not as great as the difference  between
Anchorage and Dillingham, yet the same conclusion can be reached.
Cost  of  Food at Home.  If the person in the Copper River  Basin
is,  for  instance,  a  member of one of  the  20  households  in
Glennallen  with  an income over $100,000, that  person  is  much
better  able to obtain food than the person in Anchorage with  an
income of less than $20,000 a year.  U.S. Census 2000 data  about
household       income      in      1999,      available       at
http://factfinder.census.gov.  The Glennallen resident  would  be
spending  around 6% of household income for food, as  opposed  to
the  28%  or  more of household income devoted  to  food  by  the
Anchorage resident.

     8    785 P.2d 1, 10 (Alaska 1989).

9    Id.

     10    Applicants whose income is such that they do not  need
to  file  a  tax  return  could so state  on  their  application.
Current  thresholds generally are $8,200 for a single person  and
$16,400 for a married couple.  Presumably applicants whose income
is below these thresholds would meet any income-based eligibility
criteria.

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