NOTICE: This opinion is subject to formal
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
STATE OF ALASKA, )
) O P I N I O N
Appellant, )
) [No. 1312 - August 27, 1993]
v. )
)
HAROLD L. LOWRENCE, ) Court of Appeals No. A-4365
) Trial Court No. 3KN-91-736 Cr
Appellee. )
________________________________)
STATE OF ALASKA, )
)
Appellant, )
) Court of Appeals No. A-4370
v. ) Trial Court No. 3KN-91-1073
Cr
)
MAURICE J. HEFFERNAN, )
)
Appellee. )
________________________________)
STATE OF ALASKA, )
)
Appellant, )
) Court of Appeals No. A-4371
v. ) Trial Court No. 3KN-91-1300
Cr
)
JOYCE E. MILLER, )
)
Appellee. )
________________________________)
(continued on next page)
STATE OF ALASKA, )
)
Appellant, )
) Court of Appeals No. A-4372
v. ) Trial Court No. 3KN-91-1072
Cr
)
JOHN O. CORNELL, )
)
Appellee. )
________________________________)
STATE OF ALASKA, )
)
Appellant, )
) Court of Appeals No. A-4411
v. ) Trial Court No. 3KN-91-1563
Cr
)
MARVIN W. HUSKE, )
)
Appellee. )
________________________________)
Appeals from the District Court, Third Judi
cial District, Kenai, Lynn H. Christensen,
Judge.
Appearances: T. Henry Wilson, Assistant
Attorney General, Anchorage, and Charles E.
Cole, Attorney General, Juneau, for
Appellant. John E. Havelock, Ely & Havelock,
Anchorage, for Appellees.
Before: Bryner, Chief Judge, and Coats and
Mannheimer, Judges.
MANNHEIMER, Judge.
One of the regulations governing state parks, 11 AAC
12.140, forbids construction or maintenance of "a dock, cabin,
home, building, or other structure in a state park, unless autho
rized by the director [of parks] under 11 AAC 18.010." Another
park regulation, 11 AAC 12.300, requires a person to secure a
permit to engage in any commercial activity within a state park.
In these consolidated cases, we are asked to decide whether 11
AAC 12.140 and 11 AAC 12.300 govern activities within the Kenai
River Special Management Area. We conclude that they do.
Four of the defendants (Lowrence, Heffernan, Cornell,
and Huske) had done construction or maintenance work within the
banks of the Kenai River (Lowrence: placing a retaining wall;
Heffernan and Cornell: excavating a canal; Huske: maintaining a
jetty). Because they had not secured permits for these
structures, they were charged with violating 11 AAC 12.140.1 The
fifth defendant, Miller, operated a boat rental business on the
Kenai River without a permit; she was charged with violating 11
AAC 12.300. The district court concluded that the statutes that
established the Kenai River Special Management Area (hereafter,
the "Kenai River Area") were vague and ambiguous on the issues of
(1) whether the Kenai River Area is a "state park", and, if so,
(2) whether normal state park regulations are to apply to the
Kenai River Area. Based on the legal axiom that ambiguous
statutes must be construed against the government in criminal
cases, the district court held that the regulations in 11 AAC 12
did not apply to the Kenai River Area, and so dismissed the
misdemeanor complaints against the defendants. The State has
appealed.
The first issue is whether the Kenai River Area is a
"state park". Because this issue is one of statutory interpreta
tion, we decide the issue de novo, without deference to the trial
court's ruling. Seaman v. State, 825 P.2d 907, 909 (Alaska App.
1992).
The Kenai River Special Management Area was created by
Alaska Statutes 41.21.500 - 514. One section of these statutes,
AS 41.21.500(1), apparently resolves the first issue litigated in
this appeal: it declares that the Kenai River Area is "a unit of
the state park system under this chapter". Moreover, the Alaska
Administrative Code supports the conclusion that the Kenai River
Area is a state park. Under AS 41.21.504(a), the Kenai River
Area "is assigned to the Department of Natural Resources for
control, maintenance, and development." Under 11 AAC 12.340(11),
for purposes of interpreting the Alaska Administrative Code,
"state park" means "any land or water managed by the division [of
parks and outdoor regulation of the Department of Natural Resourc
es]". Because "control, maintenance, and development" are
activities commonly understood to fall within the definition of
"management", we conclude that the Kenai River Area is "managed"
by the Department of Natural Resources, division of parks and
outdoor recreation. Thus, using the definition of "state park"
found in 11 AAC 12.340(11), the Kenai River Area is a state park.
The conclusion drawn from these statutory and
regulatory provisions is supported by the testimony of Walter H.
Ward, a Kenai River Area park ranger who was also a staff
participant in formulating the Kenai River comprehensive
management plan. Ward testified that the Kenai River Area was
described as a "state park" throughout the management plan
committee meetings (which were open to the public). Ward also
testified that the management plan committee reviewed existing
park regulations to determine what special modifications should
be made for the newly created Kenai River Area. The final
management plan lists 11 AAC 12.140 and 11 AAC 12.300, the
regulations the defendants were charged with violating, as among
the state park regulations "pertinent" to the Kenai River Area.
Finally, AS 41.21.506(e) provides a clear sign that the
legislature considered the Kenai River Area to be a state park.
That statute declares, "The provisions of AS 41.21.025(b) and (c)
do not apply to the [Kenai River Area]." These two referenced
subsections, AS 41.21.025(b) and (c), restrict the Department of
Natural Resources's zoning authority over private land "within
the boundaries of state parks established under this chapter".
The fact that the legislature thought it necessary to
specifically exempt the Kenai River Area from the operation of
AS 41.21.025(b) and (c) _ two statutory provisions that apply
only to state parks _ convincingly demonstrates that the
legislature intended to create the Kenai River Area as a state
park and concomitantly intended the Kenai River Area to be
governed by the provisions of AS 41.21.010 - 040 and the
regulations promulgated under AS 41.21.020 unless expressly
otherwise provided.
This brings us to the second issue. The defendants
argue that, even if the Kenai River Area is a state park, the
legislature has indeed specified that normal state park
regulations do not apply to the Kenai River Area. The defendants
point to AS 41.21.506(b) and (c), which provide:
(b) The commissioner shall adopt regula
tions under the Administrative Procedures Act
(AS 44.62) that are necessary to achieve the
purposes of AS 41.21.500 - 41.21.514 and to
implement the [comprehensive management] plan
adopted under (a) of this section. ...
(c) Until regulations adopted under
AS 41.21.500 - 41.21.514 take effect,
existing state regulations otherwise
applicable to the Kenai River Special
Management Area remain in effect.
The defendants argue that, even if subsection (c) originally made
all existing state park regulations applicable to the Kenai River
Area, subsection (c) no longer has any effect. The defendants
point out that, by its terms, subsection (c) is only effective
"[u]ntil regulations adopted under AS 41.21.500 _ 41.21.514 take
effect"; and they also point out that the Commissioner of Natural
Resources has adopted eight regulations under AS 41.21.506(b) to
govern the Kenai River Area. See 11 AAC 20.850 - 885. According
to the defendants' argument, the enactment of these regulations
means that other state park regulations no longer apply to the
Kenai River Area.
We find the defendant's construction of AS 41.21.506(c)
to be patently inconsistent with the legislature's intent
regarding the management of the Kenai River Area. As the State
points out, some of the lands now comprising the Kenai River Area
were state parks before the creation of the River Area. If
AS 41.21.506(c) were interpreted as the defendants contend it
should be, the result would be that, because the Commissioner of
Natural Resources has promulgated eight regulations to govern the
Kenai River Area, the pre-existing park land within the Kenai
River Area now has less protection than it did before the
creation of the River Area. The legislature's declared
purpose in creating the Kenai River Area was to enhance
protection of the entire Area in three specific ways _ to
"designate [the River Area] as a unit of the state park system
under [AS 41.21]", AS 41.21.500(1); to "protect and perpetuate
the fishery and wildlife resources and habitat in the [River
Area] and adjacent area", AS 41.21.500(2); and to "manage
recreational uses and development activities in the [River Area]
and adjacent area", AS 41.21.500(3). The defendants'
construction of AS 41.21.506(c) defeats that purpose. Even
though criminal statutes generally must be construed in favor of
the accused, a court is nevertheless obliged to avoid construing
statutes in a way that leads to patently absurd results or to
defeat of the obvious legislative purpose behind the statute.
Sherman v. Holiday Construction Co., 435 P.2d 16, 19 (Alaska
1967); Millman v. State, 841 P.2d 190, 195 (Alaska App. 1992);
Wylie v. State, 797 P.2d 651, 657 (Alaska App. 1990); Belarde v.
Anchorage, 634 P.2d 567, 568 (Alaska App. 1981). We therefore
conclude that AS 41.21.506(c) means that normal state park
regulations apply to the Kenai River Area until the Commissioner
of Natural Resources adopts a special Kenai River Area regulation
to the contrary.
The defendants attempt to avoid this conclusion by
asserting that the Kenai River Area is only an "overlay district"
that encompasses both state park land and non-park land.
According to this argument, state park regulations continue to
apply to the pre-existing state parks within the Kenai River
Area, while the rest of the River Area is governed only by the
eight regulations in 11 AAC 20.850 _ 885.
However, the defendants' argument is inconsistent with
AS 41.21.506(c). The statute declares that, "[u]ntil regulations
adopted under AS 41.21.500 _ 41.21.514 take effect, existing
state regulations otherwise applicable to the Kenai River Special
Management Area remain in effect." The statute does not distin
guish between pre-existing park land and newly regulated land
within the Kenai River Area. If, as the defendants contend, the
phrase "existing state regulations otherwise applicable to the
Kenai River Special Management Area" refers solely to the state
park regulations governing pre-existing park lands within the
Kenai River Area, then AS 41.21.506(c) would mean that all normal
state park regulations would cease effect as soon as the
Commissioner of Natural Resources promulgated one or more
regulations to govern the Kenai River Area in general. This
construction is not compatible with the legislative purpose
evinced in AS 41.21.500 - 514.
In sum, we find that the legislative intent with
respect to the Kenai River Area is not incurably ambiguous or
vague. Our review of the statutes convinces us that the
legislature intended the Kenai River Area to be a state park and
intended normal state park regulations to govern the River Area
unless those regulations were inconsistent with a regulation
promulgated specifically for the River Area under AS
41.21.506(b).
The decision of the district court is REVERSED. The
criminal complaints against the defendants are reinstated, and
these cases are remanded to the district court for renewed
proceedings on those complaints.
_______________________________
1 The Commissioner of Natural Resources is authorized by
AS 41.21.020(a)(6) to promulgate regulations governing state
parks. Violation of a regulation adopted under AS 41.21 is a
misdemeanor punishable by a fine of $1000 or imprisonment for up
to six months or both. AS 41.21.950.
