Alaska Fish and Wildlife Conservation Fund v. State

Notice: This opinion is subject to correction before publication in the P ACIFIC R EPORTER .
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@akcourts.us.
THE SUPREME COURT OF THE STATE OF ALASKA
ALASKA FISH AND WILDLIFE )
CONSERVATION FUND, ) Supreme Court No. S-14516
)
Appellant, ) Superior Court No. 4FA-11-01474 CI
)
v. ) OPINION
)
STATE OF ALASKA and ) No. 6992 - March 27, 2015
AHTNA TENE NENE’, )
)
Appellees. )
)
Appeal from the Superior Court of the State of Alaska,
Fourth Judicial District, Michael P. McConahy, Judge.
Appearances: Michael C. Kramer, Borgeson & Kramer, P.C.,
Fairbanks, for Appellant. Michael G. Mitchell, Sr. Assistant
Attorney General, Anchorage, and Michael C. Geraghty,
Attorney General, Juneau, for Appellee State of Alaska. John
M. Starkey, Hobbs Straus Dean & Walker, Anchorage, for
Appellee Ahtna Tene Nene’.
Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and
Bolger, Justices.
MAASSEN, Justice.
I. INTRODUCTION
Regulations promulgated by the Alaska Board of Game establish two
different systems of subsistence hunting for moose and caribou in Alaska’s Copper Basin
region: (1) community hunts for groups following a hunting pattern similar to the one
traditionally practiced by members of the Ahtna Tene Nene’ community; and
(2) individual hunts.1 A private outdoors group, the Alaska Fish and Wildlife
Conservation Fund, argues that this regulatory framework violates the equal access and
equal protection clauses of the Alaska Constitution by establishing a preference for a
certain user group. The Fund also argues that the regulations are not authorized by the
governing statutes, that they conflict with other regulations, and that notice of important
regulatory changes was not properly given to the public. But because we conclude that
the Board’s factual findings support a constitutionally valid distinction between patterns
of subsistence use, and because the Board’s regulations do not otherwise violate the law,
we affirm the superior court’s grant of summary judgment to the State, upholding the
statute and the Board regulations against the Fund’s legal challenge.
II. FACTS AND PROCEEDINGS
The Copper Basin Community Hunt Area, located in Southcentral Alaska,
includes Game Management Units 11 and 13 and a portion of Unit 12.2 After public
hearings, the Board made extensive findings about the area in 2006, describing the
customary and traditional subsistence use of moose and caribou.3 The Board recognized
the existence of a community-based pattern of subsistence hunting, originating with the
1
5 Alaska Administrative Code (AAC) 85.025 (2012); 5 AAC 85.045;
5 AAC 92.050; 5 AAC 92.072.
2
In a recent case involving these same parties, we discussed Ahtna’s and the
Board’s respective histories with Unit 13 moose and caribou. See Ahtna Tene Nene’ v.
State, Dep’t of Fish & Game, 288 P.3d 452, 455-57 (Alaska 2012).
3
The Board made these findings by considering the eight criteria described
in 5 AAC 99.010(b). We upheld these eight criteria in Alaska Fish & Wildlife
Conservation Fund v. State, Dep’t of Fish & Game, Bd. of Fisheries, 289 P.3d 903
(Alaska 2012).
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Ahtna Athabascan communities in the region and “later adopted by other Alaska
residents.” This community-based pattern, the Board found, was characterized by use
of the entire caribou or moose, leaving only the antlers behind, and by events of
“[w]idespread community-wide sharing” after the harvest.
In 2011the Board made supplemental findings about a second subsistence
hunting pattern in the Copper Basin. This pattern, according to the Board, was an
individual use pattern that occurs “among households and families” but unlike the
community-based pattern is not “linked to extensive networks of cooperation and
sharing.” The individual use pattern occurs mostly during the fall, and it centers upon
areas accessible from the road system. Individual subsistence users, like community
subsistence users, tend to return to their “well-known and long-established
camping/hunting sites,” but they tend to travel much farther to get there. The individual
use pattern does not tend to use organ meat; meat sharing is “less formal”; and the “peer
pressure to share is far less pronounced.”
Based on these two recognized patterns of subsistence hunting, the Board
adopted regulations that bifurcated subsistence hunts4 in Unit 13 into community
harvests and individual hunts.5 A community harvest permit is issued to members of a
group of 25 or more who agree to engage in the hunting practices described in the
Board’s 2006 findings, including meat sharing and organ salvage.6 The community
moose hunt has a longer hunting season, has a larger geographic area, and is allocated
4
Subsistence hunting statutes divide subsistence hunts into two tiers: Tier
I hunts are those in which the resource is abundant enough to satisfy all subsistence uses;
Tier II hunts are those in which it is not. AS 16.05.258(b)(1)-(4); see State v. Morry,
836 P.2d 358, 365-66 (Alaska 1992).
5
5 AAC 85.045; 5 AAC 92.050; 5 AAC 92.072.
6
5 AAC 92.072(c)(1).
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up to 70 moose of any size.7 For caribou, the season, hunting area, and size of animal
that may be hunted are the same for both the community harvest and individual permit
holders, but the community hunt is allocated up to 300 caribou.8 (What this allocation
means in practical terms is addressed later in this opinion.)
These regulations were challenged in the superior court by the nonprofit
Alaska Fish and Wildlife Conservation Fund. The Fund argued that the regulations
violated the Administrative Procedure Act,9 the subsistence hunting statutes, and article
VIII of the Alaska Constitution. The Fund asked the court to enjoin all community
harvest hunts and to strike any statutes and regulations purporting to allow them. The
Fund also asked the court to require the revisor of statutes to strike or amend statutes that
Alaska’s courts have ruled unconstitutional in the past. The local tribe, Ahtna Tene
Nene’, was granted leave to intervene as a defendant.
All parties agreed that the issues before the superior court could be decided
on summary judgment. The superior court ruled in favor of the State, holding that the
challenged regulation had been properly noticed; that the regulatory scheme was within
7
Id. Individual hunters may only harvest bull moose with spike-fork, 50­
inch, or 4 brow tine antlers, while community harvesters may harvest any bulls but no
more than 70 that could not have been harvested by individual hunters. 5 AAC 85.045.
The community harvesters’ any-bull allocation increased to 100 for the 2013 season.
5 AAC 85.045 (am. 7/1/13).
8
See 5 AAC 85.025. In testimony before the Board, a representative from
the Alaska Outdoor Council, the Fund’s sister organization, expressed concern that
community harvest permits would be issued per person while individual permits would
be issued per household. This potential inequity never occurred because by special
regulation the Board limited hunters in Unit 13 to one caribou per household regardless
of whether they held a community harvest permit or an individual permit. See 5 AAC
92.071(a); 5 AAC 92.072(c)(2)(A).
9
AS 44.62.010 – .950.
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the Board’s statutory power because the subsistence hunting statutes allow the Board to
distinguish between different subsistence uses; and that the community harvest permit
system did not violate the equal access provisions of the Alaska Constitution, article
VIII, because participation in a community harvest was open to all Alaska residents. The
Fund now appeals.
III. STANDARDS OF REVIEW
Summary judgment may be granted only when there is no genuine issue of
material fact and the moving party is entitled to judgment as a matter of law, and we
therefore review grants of summary judgment de novo.10 In a review of agency action
we substitute our judgment for that of the agency when interpreting the Alaska
Constitution and deciding issues of law.11 But “[w]hen the interpretation of a statute or
other question of law implicates ‘agency expertise as to complex matters or as to the
formulation of fundamental policy,’ we defer to the agency’s interpretation so long as
it has a ‘reasonable basis’ in the law.”12 If “a case may be fairly decided on statutory
grounds or on an alternative basis, we will not address the constitutional issues.”13 When
10
Gilbert v. State, Dep’t of Fish & Game, Bd. of Fisheries, 803 P.2d 391, 394
(Alaska 1990) (citing Southeast Alaska Constr. Co. v. State, Dep’t of Transp., 791 P.2d
339, 342 (Alaska 1990); Grand v. Municipality of Anchorage, 753 P.2d 141, 143 n.3
(Alaska 1988)).
11
Alaska Fish & Wildlife Conservation Fund v. State, Dep’t of Fish & Game,
Bd. of Fisheries, 289 P.3d 903, 907 (Alaska 2012) (citing Koyukuk River Basin Moose
Co-Mgmt. Team v. Bd. of Game, 76 P.3d 383, 386 (Alaska 2003)).
12
Wilber v. State, Commercial Fisheries Entry Comm’n, 187 P.3d 460, 465
(Alaska 2008) (quoting Rose v. Commercial Fisheries Entry Comm’n, 647 P.2d 154, 161
(Alaska 1982)).
13
Id. (citing State, Dep’t of Health & Soc. Servs. v. Valley Hosp. Ass’n,
116 P.3d 580, 584 (Alaska 2005)).
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a regulation is adopted in accordance with the Administrative Procedure Act and the
legislature intended to give the agency discretion, our review is limited to ascertaining
whether the regulation is consistent with its authorizing statutory provisions and whether
it is reasonable and not arbitrary.14
IV. DISCUSSION
A. The Community Harvest Permit System Does Not Violate Article VIII
Of The Alaska Constitution.
The Fund argues that the community harvest permit system is
unconstitutional because it creates classifications that result in disparate treatment of
Alaskans who are otherwise similarly situated. The superior court rejected this
argument, reasoning that “[a]ny Alaskan is eligible to participate in either opportunity
[i.e., the individual hunt or the community harvest] by complying with the regulatory
requirements for each.” We agree.
Sections 3, 15, and 17 of article VIII are the equal access clauses of the
Alaska Constitution; they provide the constitutional framework within which the State
regulates subsistence hunting and fishing. Section 3, the common use clause, provides
that “[w]herever occurring in their natural state, fish, wildlife, and waters are reserved
to the people for common use.” Section 17, the uniform application clause, requires that
“[l]aws and regulations governing the use or disposal of natural resources . . . apply
equally to all persons similarly situated with reference to the subject matter and purpose
to be served by the law or regulation.” Section 15 provides that there shall be “[n]o
exclusive right or special privilege of fishery . . . in the natural waters of the State”;
though the clause addresses only fishing, we apply its underlying principles when
14
Id.
-6- 6992
interpreting sections 3 and 17.15 Together, these provisions “share at least one meaning:
exclusive or special privileges to take fish and wildlife are prohibited.”16
The equal access clauses are not implicated by a regulation that applies
equally to all the State’s citizens.17 To be invalid under these clauses, a regulation must
place “limits . . . on the admission to resource user groups.”18 “[W]e have consistently
defined ‘user groups’ in terms of the nature of the resource (i.e., fish or wildlife) and the
nature of the use (i.e., commercial, sport or subsistence).”19 We have refused to define
“user groups” based on a “particular means or method of access” to the resource,20 and
we have declined to recognize a constitutional right to “convenient” access.21 Instead,
we have repeatedly held that “[i]nconvenience 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.”22
15
McDowell v. State, 785 P.2d 1, 9 (Alaska 1989).
16
Id. at 6.
17
Interior Alaska Airboat Ass’n v. State, Bd. of Game, 18 P.3d 686, 695
(Alaska 2001) (citing Alaska Fish Spotters Ass’n v. State, Dep’t of Fish & Game,
838 P.2d 798, 804 (Alaska 1992)).
18
Tongass Sport Fishing Ass’n v. State, 866 P.2d 1314, 1318 (Alaska 1994)
(internal citations omitted); see also Interior Alaska Airboat Ass’n, 18 P.3d at 695.
19
Alaska Fish Spotters, 838 P.2d at 803.
20
Id.
21
State v. Kenaitze Indian Tribe, 894 P.2d 632, 640 (Alaska 1995).
22
Interior Alaska Airboat Ass’n, 18 P.3d at 695 (quoting Kenaitze Indian
Tribe, 894 P.2d at 640) (internal quotation marks omitted).
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In Alaska Fish Spotters Ass’n v. State, we reviewed a challenge to a
regulation that prohibited the aerial spotting of salmon in Bristol Bay.23 Despite the
Association’s argument that the regulation “eliminated their ‘historical’ and ‘long
enjoyed’ access to the fishery resource” as a unique user group, we concluded that the
common use clause does not obligate the State to “guarantee access to a natural resource
by a person’s preferred means or method.”24 We further explained that although “each
ban directly affected only a small number of people who had previously used the banned
tool” and “precluded a preferred use of the fisheries resource,” the bans applied equally
to all persons in the State and did not preclude all uses of the resource.25 We noted other
ways the members of the Association could access the fishery resources besides the one
they preferred: they “may access the resource in the same manner open to any other
commercial fishers. They may participate in industries which support the fishery harvest.
They may continue to use their planes to spot fish before an open commercial fishing
period and to transport supplies and personnel for commercial fishing clients.”26 We
concluded that the regulation was “a permissible limitation on the means and methods
which any person may use to take salmon in Bristol Bay” and did not violate the
Constitution’s common use clause.27
23
838 P.2d at 799-800.
24
Id. at 801.
25
Id. at 802.
26
Id.
27
Id.
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In this case, the relevant “user group” is subsistence hunters, which means
all Alaskans, urban or rural.28 All Alaskans are eligible to receive a community harvest
permit; the only requirement for obtaining one is collaboration with other resource users.
Like the members of the Fish Spotters Association, hunters who choose not to join a
community group have another way to access moose and caribou: they can apply for an
individual hunting permit. The requirement of joining a group may well be inconvenient
for those who lack a ready community; but inconvenience is not a bar to eligibility for
participation, and it is therefore insufficient to raise a constitutional claim under the equal
access clauses.29
The Fund also argues that AS 16.05.330(c) and 5 AAC 92.072(d) are
facially invalid under article VIII. The superior court found that while these provisions
“could be applied in a manner offensive to article VIII,” they could also be applied
constitutionally.
“[A] party raising a constitutional challenge to a statute bears the burden
of demonstrating the constitutional violation. A presumption of constitutionality applies,
and doubts are resolved in favor of constitutionality.” 30 The Fund’s main complaint
28
McDowell v. State, 785 P.2d 1, 9 (Alaska 1989) (holding that admission to
subsistence user groups could not be based on rural residency).
29
The Fund argues that the regulations are unconstitutional under our decision
in Grunert v. State, 109 P.3d 924 (Alaska 2005). In Grunert we invalidated a
cooperative salmon fishery, but we did so under the Limited Entry Act, not article VIII.
Id. at 932-46. As the State points out in its brief, there is “no analog to the Limited Entry
Act or other statutory limitation on the Board’s authority to regulate in the subsistence
[hunting] context.” We agree with the State that Grunert does not control our decision
here.
30
Estate of Kim ex rel. Alexander v. Coxe, 295 P.3d 380, 388 (Alaska 2013)
(alteration in original) (quoting Harrod v. State, Dep’t of Revenue, 255 P.3d 991, 1000­
(continued...)
-9- 6992
about AS 16.05.330(c) is that it “was passed as part of a comprehensive rural preference
subsistence statute intended by the Governor and legislature to circumvent this Court’s
1985 Madison decision.”31 But we will uphold a statute against a charge that it is facially
unconstitutional even if it might sometimes create problems as applied, as long as the
statute “has a plainly legitimate sweep.”32 And the Fund admits the statute can be read
constitutionally: “At most, AS 16.05.330(c) gives the Boards discretion to consolidate
and streamline the permitting process by issuing permits to areas, villages, communities,
or groups.” The Fund’s facial challenge to the statute’s constitutionality therefore fails.33
B. The Community Harvest Regulations Are Authorized By Statute.
The Fund’s challenge to the statutory authority for the community harvest
system raises three questions: (1) whether the Board has the authority to adopt
regulations that grant permits to communities; (2) whether such regulations can
permissibly differentiate among various patterns of use of a subsistence resource; and
30
(...continued)
01 (Alaska 2011)).
31
The reference is to Madison v. Alaska Dep’t of Fish & Game, 696 P.2d 168
(Alaska 1985), in which we held that subsistence uses could not be constitutionally
limited to members of communities that had historically practiced subsistence hunting
and fishing.
32
State v. Planned Parenthood of Alaska, 171 P.3d 577, 581 (Alaska 2007)
(quoting Treacy v. Municipality of Anchorage, 91 P.3d 252, 260 n.14 (Alaska 2004))
(internal quotation marks omitted).
33
The Fund also urges us to strike several unconstitutional statutes. But the
Fund does not state which statutes are unconstitutional or what authority we have to
rewrite statutes. We find this issue waived as inadequately briefed and do not consider
it here. See Adamson v. Univ. of Alaska, 819 P.2d 886, 889 n.3 (Alaska 1991) (“[W]here
a point is given only a cursory statement in the argument portion of a brief, the point will
not be considered on appeal.”).
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(3) whether the regulations at issue here provide a “reasonable opportunity” for each
subsistence use pattern. We answer all three questions in the affirmative.
First, under AS 16.05.330(c) the Board “may adopt regulations providing
for the issuance and expiration of subsistence permits for areas, villages, communities,
groups, or individuals as needed for authorizing, regulating, and monitoring the
subsistence harvest of fish and game.” This plain statutory language authorizes the
issuance of community permits.
Second, AS 16.05.258(b)(2) not only grants the Board the authority to
differentiate between subsistence uses, it requires the Board to adopt regulations that
“provide a reasonable opportunity for subsistence uses” of those game populations that
are “customarily and traditionally taken or used for subsistence.”34 Here, after the Board
identified the two customary and traditional subsistence use patterns of moose and
caribou in the Copper Basin — the community use pattern and the individual use pattern
— it was statutorily required to “provide a reasonable opportunity” for these subsistence
uses of the relevant game populations.35 The Board’s findings described two very
different use patterns, with different hunting areas and seasons, different parts of the
animal consumed, and different cultural and social traditions associated with the hunt.
34
AS 16.05.258(a), (b)(2)(A).
35
AS 16.05.258(b)(2)(A).
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Because both patterns are “subsistence uses,”36 the Board was required to provide “a
reasonable opportunity” for each of them.37
The Board did so by its creation of the parallel community harvest and
individual permit systems. The permit conditions for the community harvest closely
track the Board’s 2006 findings of customary and traditional use. The Board found that
a community hunting pattern “was originally defined by the Ahtna Athabascan residents”
but was “then adopted and modified by other local settlers in the early 20th century.”
The Board found that “[m]ost of the long-term subsistence patterns in this area are
community-based,” and that
specialized hunters tend to provide for the community at
large, sometimes or often taking more than necessary for their
own family’s use in their capacities as community providers,
and to fulfill social and cultural obligations. Community
subsistence activities are then divided among members and
further introduced into traditional patterns of barter and
exchange. Thus, some harvest and others process, distribute,
receive and utilize the results of the harvest.
The community harvest permits reasonably provide for this use by allowing “a
community or group of 25 or more to select, from their group members, individual
36
AS 16.05.940(33) (Subsistence uses are the “noncommercial, customary
and traditional uses of wild, renewable resources . . . 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.”).
37
AS 16.05.258(b)(2)(A). We observe that the Fund’s challenge is based on
what it views as the Board’s preferential treatment of one subsistence user group over
another. It does not directly contend that holders of individual subsistence permits
lacked a “reasonable opportunity,” only that the opportunities in the community hunt
were better.
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harvesters who may possess particular expertise in hunting to harvest wildlife resources
on behalf of the community or group.”
Nor was the group size of 25 chosen arbitrarily. The Board was concerned
that without a minimum size, “groups of two or three people [could] come in and create
a very huge administrative burden.” The Board set the group membership at 25 “to
ensure that it really is a communal experience, and not just two hunting buddies together,
that there really is some level of interaction and sharing and that there’s a genuine
group.” This tracks the Board’s 2006 findings about the community use pattern, which
showed that the community or group potentially benefitting from a hunt was larger than
a nuclear family — it involved “all family members, elders, [and] others in need.”
The community use pattern also involves the “salvage and use [of] all parts
of the harvested animal, in conformance with traditions prohibiting waste.” Hunters
retrieve “the entire carcass and all bones, hide, head, heart, liver, kidneys, stomach, and
fat,” leaving only the antlers behind. Permit conditions therefore require meat salvage,
the taking of “[a]ll edible meat from the frontquarters, hindquarters, ribs, neck, and
backbone, as well as the heart, liver, kidneys, and fat.”
Also involved in the community use pattern is “[w]idespread community-
wide sharing.” Unlike use patterns in which hunters “are completely free to share, or not
to share, as they see fit,” the community pattern comes with a social obligation to share
the game with others. This sharing “plays a key economic role in distributing essential
food supplies throughout the community.” Permit conditions therefore require
community harvest permit holders to participate in “at least one communal sharing
event.”
The community harvest permit also authorizes a larger hunting area than
that open to individual hunters. Community harvest permit holders are allowed to hunt
-13- 6992
moose in all of Game Management Units 11 and 13 and part of Unit 12.38 Individuals
are limited to Unit 13.39 This distinction is based on the Board’s 2006 and 2011findings
about the different hunting areas frequented by community and individual hunters. The
Board found that community hunters in the Copper Basin have “an intimate and
exclusive relationship between the user and a very particular set of places generally in
close proximity to the hunter’s residence.” Community hunters traditionally do not
travel outside the Copper Basin to hunt, even when caribou and moose are hard to find.
The Board found that individual hunters, in contrast, traditionally hunt in areas reached
by road from Anchorage and Fairbanks, along the Denali and Glenn Highways, both of
which are mostly within Unit 13; and they tend to go where the game is.40
We now consider whether the Board’s regulations specific to the moose
hunt and those specific to the caribou hunt satisfy the “reasonable and not arbitrary”
standard of review.41
1. Moose hunting
Community harvest hunters are permitted to hunt one bull moose of any
size for each person on the community group’s list, while individual hunters are limited
to bull moose with spike-fork antlers, 50-inch antlers, or antlers with four or more brow
38
The 2011-12 hunt conditions opened only Unit 13 to caribou hunting by
community harvest permit holders, “due to conservation concerns for adjacent caribou
herds.”
39
5 AAC 85.045.
40
See Unit 13: Nelchina-Upper Susitna, A LASKA D EPARTMENT OF FISH &
G AME (May 8, 2012), http://www.adfg.alaska.gov/static/hunting/maps/gmumaps/pdfs/
13.pdf.
41
See Wilber v. State, Commercial Fisheries Entry Comm’n, 187 P.3d 460,
465 (Alaska 2008).
-14- 6992
tines on one side.42 Community harvest hunters also have a longer season: August 10
to September 20, as opposed to September 1 to September 20 for individuals.43 The
Fund argues that this provides the community harvest hunters with “an exclusive hunting
opportunity” and is therefore impermissible.
We conclude, however, that the Board made findings sufficient to support
some season and size differences between community and individual hunts. Simply put,
the community hunts are more likely to occur close to home, where it is harder to find
moose; a longer season and fewer size restrictions help counter this difficulty. During
a 2011 Board of Game proceeding, a supporter of community hunts testified that the “50­
inch antlered moose is . . . pretty scarce around where I hunt and it’s usually pretty warm.
They’re usually way up in the mountains. Having a restriction for 50-inch antlers . . .
makes [it] a hardship for . . . getting a moose. . . . I took my daughter there last year, and
. . . we saw a lot of bull moose, but . . . they aren’t . . . 50-inch moose. All small antlers.”
At an earlier hearing in 2010, there was testimony that in early fall “all the moose are
high during that time and the three brow tine and four brow tines are up high. . . . [Y]ou
might find a spike fork near a road, but . . . people didn’t really get any moose.” The
community use pattern may require a longer hunting season because community harvest
hunters traditionally “keep hunting as close to home as reasonably possible,” “travel[ ]
shorter distances to hunt,” and “still prefer to walk in to hunting areas and maintain
permanent camps.” If the community harvest permit holders hunt in the same areas each
year and do not travel in search of better hunting opportunities, it is reasonable to
conclude that they will need a longer season in order to find legal moose. In addition,
42
5 AAC 85.045 (providing for “1 bull per harvest report by community
harvest permit only . . .”).
43
5 AAC 85.045. Community and individual subsistence hunters have the
same season for caribou. 5 AAC 85.025.
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the Board found in 2006 that community harvest hunters hand “down the hunting and
fishing knowledge, values and skills through family oriented experiences,” which require
“relatively long summer and fall camping trips.” Although the Board heard evidence
that the individual hunt would also benefit from a longer season,44 we cannot say that the
Board’s adoption of a regulation setting a longer season and fewer size restrictions for
the community hunt is arbitrary or unreasonable.45
2. Caribou hunting
The community harvest caribou hunt allows hunters to take one animal per
group member, up to 300 caribou.46 Individual hunters may also take one caribou each.47
The Board, before adopting this regulation, discussed whether 300 caribou was a quota
allocated to the community hunt, allowing the community hunters to take up to that many
animals even if the individual hunt were closed; it also discussed the 300 caribou as an
absolute cap on the number that community groups could harvest. In practice, the
44
For example, the 2011 Board findings describing the individual subsistence
hunting pattern note that “[a]ll hunters currently tend to focus their harvest efforts during
the late summer and early fall, when caribou and moose are in their best physical
condition and relatively accessible from the road system.” The Board found that the
individual hunting pattern also involved passing down “lore about how and where to
hunt . . . from generation to generation.” Furthermore, in the same session in which it
adopted its 2011 findings, the Board rejected a proposal to allow non-community harvest
members to engage in early moose hunting in Unit 13. The Board decided that even a
short general hunt in August was not sustainable.
45
See Interior Alaska Airboat Ass’n. v. State, Bd. of Game, 18 P.3d 686, 690
(Alaska 2001) (“In determining whether a regulation is reasonable and not arbitrary
courts are not to substitute their judgment for the judgment of the agency. Therefore
review consists primarily of ensuring that the agency has taken a hard look at the salient
problems and has genuinely engaged in reasoned decision making.”).
46
5 AAC 85.025(a)(8).
47
Id.
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Department has not treated the number of caribou assigned to the community harvest as
a quota. In 2011, the Department closed the individual hunt by emergency order,
explaining that the 2011-2012 harvest quota of 2,400 caribou had nearly been reached
— individual hunters had taken 1,603 caribou, community hunters had taken 82, federal
subsistence hunters had taken 361, and the holders of drawing permits had taken 311.48
This closure left the community harvest and federal subsistence hunts open because
“additional harvest [was] expected to be negligible.”49 In 2013, both the individual and
community subsistence hunts were closed on October 10, despite the fact that only 112
caribou had been harvested under the community harvest permits.50
Reading the regulatory language in light of the Department’s practical
application of it, the grant of “up to 300 caribou” does not appear to be a quota that
favors community hunters at the expense of individuals. Rather, it is an upper limit
based on an estimate of the number of caribou that community hunters are expected to
take each year, a number supported by the evidence before the Board. When the Board
was discussing the community harvest regulations, Dr. James Fall, the statewide program
manager for the State’s Division of Subsistence, testified that it was difficult to determine
how many people were interested in hunting caribou in Unit 13 and how many caribou
were needed for subsistence, because the hunt there had been restricted for many years.
Yet the Board did have evidence of the needs for community use — the Ahtna
48
See A LASKA D EP ’T OF FISH & G AME , E MERGENCY O RDER N O . 04-08-11
(Dec. 2, 2011), available at http://www.adfg.alaska.gov/static/applications/webintra/
wcnews/2011/orders/04-08-11.pdf.
49
Id.
50
ALASKA DEP’T OF FISH & GAME, EMERGENCY ORDER NO . 04-07-13 (Oct. 9,
2013), available at http://www.adfg.alaska.gov/static/applications/webintra/wcnews/
2013/orders/04-07-13.pdf
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Subsistence Committee estimated this number at between 200 and 400 caribou. The
Board’s decision to designate “up to 300 caribou” for the community harvest was based
on this evidence, which contrasts with its lack of information about how many caribou
were needed for individual subsistence hunters.51 Given the evidence before the Board,
its estimate that the community harvest permit holders could take “up to 300 caribou”
is not arbitrary or unreasonable.
C. The Community Harvest Regulations Do Not Conflict With Other
Board Regulations.
5 AAC 92.072(d) is a fish and game regulation of statewide application,52
providing that the “total bag limit for a community harvest permit will be equal to the
sum of the individual participants’ bag limits.” The Fund argues that the Board violated
this regulation when it eliminated the size restrictions on moose for holders of
community harvest permits in Unit 13, effectively granting them a larger bag limit. But
the regulations do not conflict. A “bag limit” is defined as “the maximum number of
animals of any one game species a person may take.”53 Board regulations provide that
community harvest permit holders and individual permit holders are both entitled to
harvest a single caribou and a single bull moose, although the individual permit holders
are limited by antler size and shape and the community harvest permit holders are not.54
51
Discussing the number of available caribou, Board Chair Ted Spraker said
that the Board needed more data and its members “really need to kind of step back from
this and . . . let it go for a year” before they could get a “pretty good idea of what’s going
to happen.”
52
See 5 AAC 92.001 (“[T]he regulations in this chapter apply statewide to
subsistence hunting.”).
53
5 AAC 92.990(a)(3) (emphasis added).
54
5 AAC 85.025; 5 AAC 85.045.
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Alaska Statutes 16.05.255(f) and 16.05.258(e) both differentiate between “bag limits”
and “size limitations” when discussing the areas in which the Board may regulate.
Community harvest permits do not allow permit holders to take more bulls than the
individual permit holders; the Board adoption of the community harvest permit system
did not violate 5 AAC 92.072(d).
D. The Board’s Amendment To 5 AAC 92.072(d) Was Properly Noticed.
The Board amended 5 AAC 92.072(d) in July 2009 to give itself the
authority to assign different season lengths to community harvest permit holders and
individual permit holders.55 The Administrative Procedure Act requires the Board to
give notice before amending a regulation.56 The notice must include “an informative
summary of the proposed subject of agency action.”57 When the ultimate agency action
differs from that contemplated by the notice, the Administrative Procedure Act is
satisfied “if the subject matter remains the same and the original notice assured
reasonable notification to the public that the proposed agency action might affect its
interests.”58
The Fund argues that the March 2009 amendment is invalid because “[t]he
Board did not provide any notice that it would be changing a regulation that required
identical seasons and bag limits for community hunts to a regulation that allowed for
preferential seasons and bag limits.” But the superior court concluded that the notice
55
Compare Alaska Administrative Code, Register 190, 3-511 to -512 (July
2009) (implementing current language of 5 AAC 92.072(d)), with Alaska Administrative
Code, Register 182, 3-291 (July 2007) (prior language of 5 AAC 92.072(d)).
56
AS 44.62.200(a).
57
AS 44.62.200(a)(3).
58
Chevron U.S.A. Inc. v. LeResche, 663 P.2d 923, 929 (Alaska 1983).
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“did contain notice of proposed changes to [U]nit 13 seasons for caribou and moose, as
well as proposed changes to community subsistence harvest areas and conditions,” and
was thus “sufficient to comply with AS 44.62.200.” We agree.
According to the January 2009 notice — the one preceding the spring 2009
meeting — the Board was considering changes to 5 AAC 92, including changes to
“HUNTING SEASONS AND BAG LIMITS” in Unit 13 for game including moose and
caribou.59 Also to be considered were changes to “LICENSES, HARVEST TICKETS,
HARVEST REPORTS, TAGS, FEES, AND PERMITS” in units including Unit 13, and
“including, but not limited to . . . community subsistence harvest areas and conditions.”60
The subject matter of the amended regulation was the relative length of the hunting
seasons available to community harvest permit holders and individual hunters.61 The
January notice covered the same subject matter and was sufficient to inform the public
that their interests might be affected. The notice therefore satisfied the requirements of
the Administrative Procedure Act.
V. CONCLUSION
We AFFIRM the superior court’s grant of summary judgment to the State.
59
There is no copy of the notice in the record on appeal. The superior court
cited to the notice’s on-line version. The Fund does not appear to question this reliance,
and the State directs us to the same source. See A LASKA BD . O F G AME , N OTICE O F
PROPOSED CHANGES IN REGULATIONS O F THE A LASKA BD . O F G AME SPRING 2009
M EETING (Jan. 23, 2009), available at http://aws.state.ak.us/OnlinePublicNotices/
Notices/View.aspx?id=144484.
60
Id.
61
See 5 AAC 92.072(d).
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