THE COURT OF APPEALS OF THE STATE OF ALASKA
MIKE TOTEMOFF and HENRY )
MILETTE, )
) Court of Appeals Nos. A-
4276/4308
Appellants, ) Trial Court Nos. 3WH-S91-25/24CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1328 - December 23, 1993]
______________________________)
Appeal from the District Court, Third
Judicial District, Whittier, John D. Mason,
Judge.
Appearances: Anne M. Wilkas and Paul E.
Malin, Assistant Public Defenders, and John
B. Salemi, Public Defender, Anchorage, for
Appellant Totemoff. Randall S. Cavanaugh,
Anchorage, for Appellant Milette. Jeffrey T.
Killip, Assistant Attorney General, Office of
the Attorney General, Anchorage, and Charles
E. Cole, Attorney General, Juneau, for
Appellee.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
BRYNER, Chief Judge.
A jury convicted Mike Totemoff and Henry Milette of
unlawfully taking game with the aid of an artificial light
(spotlighting), in violation of 5 Alaska Administrative Code
(AAC) 92.080(7).1 Totemoff and Milette appeal, contending that
District Court Judge John D. Mason erred by denying their
pretrial motions to dismiss and by rejecting their proposed jury
instructions. We affirm.
On the night of December 27, 1990, Alaska State Trooper
James Cockrell and two other officers were patrolling Prince
William Sound when they saw a fast-moving boat shining a
spotlight on the beaches of several islands. The officers
followed the boat for ten or fifteen minutes until it went into a
bay at Naked Island. Cockrell watched through binoculars as the
spotlight beam settled on a particular area of land for several
minutes. Cockrell saw one of the two people in the boat,
Milette, make two trips up onto the beach, disappearing into the
trees for a few seconds and then returning to the boat at a
slower pace. Then the other person in the boat, Totemoff, went
onto the beach; Cockrell saw the spotlight on again for about
another minute before it turned off.
Concluding that Totemoff and Milette had likely just
unlawfully shot two deer with the aid of a spotlight, Cockrell
and the other officers maneuvered their boat into the bay to
investigate. They discovered Totemoff and Milette with two
freshly gutted deer carcasses on the beach. The officers found
three other deer carcasses in Totemoff's and Milette's boat,
along with two rifles, a Q-beam hand-held spotlight, and other
hunting equipment.
After being charged with unlawfully taking deer by
spotlighting, Totemoff and Milette moved to dismiss the charges,
contending, among other things, that the state had no
jurisdiction to prosecute them. Specifically, Totemoff and
Milette claimed that the alleged violations occurred on federal
land. They asserted that state jurisdiction had been preempted
by the federal government's recent assertion of control over fish
and game management on Alaska's federal public lands -- a course
of action resulting from the state's failure to implement the
rural subsistence preference set forth in the Alaska National
Interest Lands Conservation Act (ANILCA).2
After an evidentiary hearing on Totemoff's and
Milette's motions to dismiss, Judge Mason found that the alleged
violations had occurred on federal public lands.3 The judge
nevertheless concluded that the state had jurisdiction over the
alleged offenses.
On appeal, Totemoff and Milette first argue, as they
did below, that the state had no jurisdiction to prosecute state
hunting violations occurring on federal public lands. To resolve
this argument, we must first consider the scope of the state's
traditional authority to prosecute fish and game violations
occurring on federal public lands; we must then inquire whether
and to what extent this authority has been curtailed by recent
federal regulations promulgated under ANILCA.
As a general proposition, states enjoy broad civil and
criminal jurisdiction over federal public lands located within
their boundaries. Kleppe v. New Mexico, 426 U.S. 529, 543-45,
reh'g denied, 429 U.S. 873 (1976). State jurisdiction must yield
in two situations, however: first, when federal law expressly
provides for exclusive federal jurisdiction; second, when an
actual conflict arises between federal and state laws or
regulations. Id.
When Alaska became a state, the federal government did
not assert exclusive federal jurisdiction over the bulk of
federal public lands in the state. Although section 4 of the
Alaska Statehood Act4 provided that lands in Alaska over which
the federal government retained ownership would remain "under the
absolute jurisdiction and control of the United States," the
United States Supreme Court has interpreted this provision of the
Act to mean that federal jurisdiction over its lands would remain
"undiminished" rather than "exclusive"; the Court has thus read
this provision to allow the exercise of concurrent state
jurisdiction over federal public lands in Alaska. See Organized
Village of Kake v. Egan, 369 U.S. 60, 67-71 (1962). Since
passage of the Statehood Act, federal statutes dealing with
public lands in Alaska have commonly included provisions
specifying that they neither diminish nor enlarge Alaska's
authority over fish and game management on federal lands within
the state's borders. See, e.g., Alaska v. Andrus, 429 F. Supp.
958, 962 (D. Alaska 1977) (quoting 43 U.S.C. 1732(b)), aff'd,
591 F.2d 537 (9th Cir. 1979).
ANILCA itself contains such a provision: "Nothing in
this Act is intended to enlarge or diminish the responsibility
and authority of the State of Alaska for management of fish and
game on the public lands except as may be provided in title VIII
of this Act, or to amend the Alaska constitution." 16 U.S.C.
3202(a).5This provision makes it clear that, unless prohibited
by title VIII of ANILCA, the state was authorized to enforce its
fish and game laws against Totemoff and Milette, even though
their offenses occurred on federal public lands.6 We must thus
inquire whether title VIII of ANILCA deprived the state of the
authority it would otherwise have had.
Title VIII of ANILCA (16 U.S.C. 3111-3126) requires
that fish and game on federal public lands in Alaska be managed
in a manner giving preference to "the subsistence way of life."7
To this end, section 804 of the Act (16 U.S.C 3114) establishes
a rural subsistence preference to be applied in the allocation of
fish and game resources. Section 805 (16 U.S.C. 3115) authorizes
the Secretary of the Interior to promulgate regulations governing
subsistence use of fish and game on Alaska public lands.
The foregoing provisions plainly indicate that the
drafters of ANILCA intended to authorize federal management --
and potentially exclusive federal management -- of fish and game
resources on Alaska's federal public lands. Subsection 805(d) of
ANILCA nevertheless specifies that the State of Alaska could
continue to exercise full authority over fish and game
management, provided that the state adopted laws implementing
ANILCA's rural subsistence preference.
Because Alaska did initially attempt to conform its
fish and game laws to ANILCA's subsistence requirements, the
federal government did not immediately promulgate subsistence
regulations pertaining to Alaska public lands. Ultimately,
however, Alaska's efforts to enact a subsistence preference
conforming to the requirements of ANILCA proved unsuccessful: in
McDowell v. State, 785 P.2d 1 (Alaska 1989), the Alaska Supreme
Court declared the preference of rural over non-rural subsistence
users a violation of the Alaska Constitution. In 1991, the
federal government responded by adopting federal regulations to
implement ANILCA's subsistence preference on its public lands in
Alaska. See 36 C.F.R. 242.8
The precise question we face here is whether and to
what extent these federal subsistence regulations precluded the
state from continuing to enforce its fish and game laws against
Totemoff and Milette for acts occurring on federal public lands.
As was made clear in Kleppe v. New Mexico, 426 U.S. at 543-45,
the state's authority to enforce its laws against Totemoff and
Milette could be abridged in two ways: 1) if the federal
government's subsistence regulations purported to assert
exclusive jurisdiction over fish and game management, or 2) if
those regulations actively conflicted with Alaska law.
Neither circumstance occurs in this case. First, the
federal subsistence regulations do not purport to assert
exclusive jurisdiction over fish and game management on federal
public lands in Alaska. At the time of Totemoff's and Milette's
offenses, former 36 C.F.R. 242.14 provided:
State of Alaska fish and wildlife
regulations apply to Federal public lands
unless the Board finds it necessary to
promulgate regulations which augment or
super[s]ede State regulations in order to
ensure the priority for subsistence use of
fish or wildlife on Federal public lands.
See 56 Fed. Reg. 29310-01 at *21-*22.9 This regulation expressly
provided for continued application of Alaska fish and game
regulations on federal public lands; Alaska was precluded from
acting only if it sought to enforce a state regulation that had
been "augmented" or "superseded" by a federal subsistence
regulation.
Second, there is no actual inconsistency between the
state and federal regulations in question here. Totemoff and
Milette have cited no federal regulations or statutes that are
inconsistent with the state's enforcement of 5 AAC 92.080(7), and
we are aware of none. Indeed, 36 C.F.R. 242.25(b)(1)(vii),
which expressly forbids spotlight hunting as a means of "taking
wildlife for subsistence," is functionally identical to 5 AAC
92.080(7), thus making it clear that federal and state
regulations are entirely compatible.10
Because the federal regulatory scheme does not purport
to assert exclusive federal jurisdiction over fish and game
management and does not conflict with Alaska's spotlighting
regulation, we conclude that Judge Mason did not err in denying
Totemoff's and Milette's motions to dismiss the prosecutions on
the grounds of preemption.
Totemoff and Milette alternatively contend that, even
if federal law did not preempt state law in this case, the state
spotlighting regulation was invalid because the state promulgated
it without taking into account the fact that spotlight hunting is
a customary and traditional method of subsistence hunting.
At the trial court level, Totemoff and Milette moved to
dismiss on this ground. Judge Mason denied their motions without
ruling on the validity of the state regulation, reasoning that
the regulation's purported invalidity would not constitute a
defense to the charges in this case. See State v. Eluska, 724
P.2d 514, 515-16 (Alaska 1986), in which the Alaska Supreme Court
declared that a defendant charged with violating a hunting
regulation had no right to challenge the regulation on grounds
that it was adopted in violation of applicable subsistence laws.
On appeal, Totemoff and Milette cite a number of
federal cases that, in contrast to Eluska, seemingly allow
defendants charged with fish and game violations to raise
subsistence-based defenses. See, e.g., United States v.
Alexander, 938 F.2d 942 (9th Cir. 1991); Bobby v. Alaska, 718 F.
Supp. 764, 778-79 (D. Alaska 1989). Totemoff and Milette suggest
that these federal decisions should be read to control over
Eluska. This suggestion is plainly wrong, however, since no
federal court other than the United States Supreme Court can
control the decisions of state courts, even on questions of
federal law. Matter of F.P., 843 P.2d 1214, 1215 n.1 (Alaska
1992), cert. denied, 61 USLW 3669, 113 S.Ct. 2441 (1993).
Totemoff and Milette also suggest that, despite Eluska,
a subsistence-based challenge should have been allowed in their
case because their offenses occurred on federal public lands.
Totemoff and Milette appear to reason that, since they committed
the offenses on federal land and might have been prosecuted under
federal law, they should be entitled to raise in state court any
defense they would have been entitled to assert had they been
prosecuted federally.
Totemoff and Milette cite no authority to support this
curious blend of federal and state law, which appears to us to
mix jurisdictional apples and procedural oranges. Even assuming
their legal theory might have merit in some circumstances, it
would plainly be inapplicable in this case, since spotlight
hunting is illegal under federal law as well as state law.
Because federal law expressly prohibits spotlighting as a means
of subsistence taking, Totemoff and Milette would not have been
entitled to a subsistence-based defense in federal court had they
been prosecuted under federal law.
Finally, Totemoff and Milette contend that Judge Mason
erred in rejecting instructions telling the jury that unanimity
was required on the issue of which deer Totemoff shot and which
deer Milette shot and on the issue of whether Totemoff and
Milette acted as principals or accomplices.
We find no merit to this argument. Our cases have held
that, when two or more discrete acts, each potentially amounting
to a crime, are encompassed in a single charge, the jury must be
unanimous in deciding the act upon which it determines guilt.
See Nunn v. State, 845 P.2d 435, 443-44 (Alaska App. 1993);
Covington v. State, 703 P.2d 436, 440-41 (Alaska App. 1985),
modified, 711 P.2d 1183, 1184-85 (Alaska App. 1985). We have
never intimated, however, that a jury must agree whether a
defendant acted as a principal and or as an accomplice when proof
would allow conviction under either theory. Existing case law
indicates the contrary. See Hansen v. State, 845 P.2d 449, 451-
52 (Alaska App. 1993); Knutson v. State, 736 P.2d 775, 779-80
(Alaska App. 1987).
In this case, it was sufficient that the jury find
beyond a reasonable doubt that both Totemoff and Milette
participated jointly in the endeavor of shooting deer with the
aid of a hand-held spotlight. As a matter of law, both men could
be held accountable for their own acts or as accomplices. See AS
11.16.100. The jury was not required to be unanimous as to the
precise theory upon which it returned its guilty verdicts. State
v. James, 698 P.2d 1161 (Alaska 1985).
We AFFIRM the convictions.
_______________________________
1. 5 AAC 92.080(7) provides in part: "The following
methods of taking game are prohibited: . . . with the aid of .
. . artificial light . . . ."
2. 16 U.S.C. 3101-3233.
3. On appeal, the state challenges this finding.
However, our review of the record convinces us that the finding
is supported by the evidence and is not clearly erroneous.
4. 72 Stat. 339, as amended.
5. See also 16 U.S.C. 3202(c) ("The taking of fish
and wildlife . . . shall be carried out in accordance with the
provisions of this Act and other applicable State and Federal
law.").
6. As we pointed out earlier, even in the absence of
an express assertion of exclusive federal jurisdiction, the state
would be barred from enforcing state laws on federal public lands
if those laws actually conflicted with federal laws. However,
Totemoff and Milette do not contend that 5 AAC 92.080(7), the
state spotlighting regulation at issue here, is actually at odds
with any federal law or regulation. In fact the state regulation
is almost identical to 36 C.F.R. 242.25(b)(1)(vii), which
expressly prohibits taking game for subsistence purposes with the
aid of a spotlight.
7. See generally Bobby v. Alaska, 718 F. Supp. 764,
766-67 (D. Alaska 1989).
8. Regulations duplicating these provisions were also
promulgated in 50 C.F.R. 100.
9. The current version of this regulation goes beyond
the original by making Alaska fish and game regulations
applicable to public lands, while simultaneously adopting the
state regulations, absent actual inconsistency, as federal
regulations. In its current form, 36 C.F.R. 242.14(a) (1992)
reads: "State fish and game regulations apply to public lands and
such laws are hereby adopted and made a part of these regulations
to the extent they are not inconsistent with, or superseded by
this Part." As written, this regulation effectively permits
concurrent federal/state enforcement efforts on federal public
lands, except in situations in which specific federal regulations
conflict with or supersede corollary state provisions.
10. Although Totemoff and Milette do not raise the
issue, an argument might be made that the federal spotlighting
regulation superseded the Alaska regulation because, even though
consistent, the two regulations addressed the same subject
matter. The federal spotlight regulation, however, applies only
to subsistence taking (in contrast to the state regulation, which
applies to both subsistence and non-subsistence taking). To read
the federal regulation as superseding Alaska's broader
spotlighting regulation would require us to conclude that the
federal regulation intended to condone spotlight hunting on
public lands as a general matter, prohibiting it only for
subsistence users. Since this intent would plainly conflict with
the regulation's underlying purpose of implementing ANILCA's
rural subsistence preference, we conclude that the federal
spotlighting regulation cannot reasonably be construed as being
intended to supersede Alaska's similar, but somewhat broader,
provision.
