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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
SAMMY D. BAKER, )
JEFFRY C. BAKER, and ) Court of Appeals No. A-4917
ALVIN C. TOMLINSON, ) Trial Court Nos. 3KN-92-1238,
) 92-1239, 92-1240, 92-1488,
Appellants, ) 92-1489, and 92-1490 Cr
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1362 - August 5, 1994]
________________________________)
Appeal from the District Court, Third Judi
cial District, Kenai, Lynn H. Christensen,
Magistrate.
Appearances: Arthur S. Robinson, Robinson,
Beiswenger, & Ehrhardt, Soldotna, for Appel
lants. Robert Nauheim, Assistant Attorney
General, Sharon A.S. Illsley, District Attor
ney, Kenai, and Charles E. Cole, Attorney
General, Juneau, for Appellee.
Before: Coats and Mannheimer, Judges, and
Wolverton, District Court Judge.* [Bryner,
Chief Judge, not participating.]
MANNHEIMER, Judge.
Sammy D. Baker is the holder of a Commercial Fisheries
Entry Commission (CFEC) permit. He operates the fishing vessel
"Sea Ducer II". Under 5 AAC 39.107(b), "[t]hroughout the period
of operation of mobile net gear, a person who holds a valid CFEC
permit for that gear must be physically present on board the
vessel from which the net gear is operated." Under section (c)
of the same regulation, the permit-holder "shall personally
operate or assist [or immediately supervise] the operation of
mobile net gear".
On August 2, 1992, while Baker was absent from his
vessel, Jeffry C. Baker (Sammy Baker's 16-year-old son) and Alvin
C. Tomlinson operated the vessel for commercial fishing. When
Alaska State Trooper Todd Sharp boarded the vessel, Jeffry Baker
and Tomlinson concealed the fact that the permit-holder (Sammy
Baker) was not on board. Tomlinson told the trooper that he was
Sammy Baker; he produced the ship's registration documents and
Sammy Baker's CFEC permit, which he claimed was his own. When
the trooper asked Tomlinson for personal identification,
Tomlinson said that he had left his identification on shore.
Upon further questioning, Tomlinson admitted his true identity
and confessed that Sammy Baker was not present on the boat.
At a later evidentiary hearing, Sammy Baker testified
that he had left the fishing vessel to return to his job as
production foreman for Atlantic Richfield. Baker allowed his son
Jeffry and Tomlinson to operate the boat because he considered
each of them to be just as capable a fisher as himself, and
because he felt that he owed them the opportunity to fish for a
whole season while he returned to his oil field job. Baker
stated that when his son and Tomlinson operated the boat without
him, he let them keep the entire proceeds of their catch. When
asked why he had not transferred his permit to his son Jeffry,
the elder Baker answered that he believed Jeffry, at age sixteen,
was not sufficiently experienced to assume full responsibility
for the fishing operation. However, Sammy Baker had left his son
in charge of the boat so that Jeffry could gain experience
running the operation.
Sammy Baker pleaded no contest to violating 5 AAC
39.107(b), being absent from the fishing vessel that operated the
mobile net gear for which he had the permit. Jeffry Baker
pleaded no contest to violating AS 16.43.140(a), operating
commercial fishing gear without a permit. Tomlinson pleaded no
contest to violating 5 AAC 39.197, possessing unlawfully taken
fish. When they entered these pleas, the defendants reserved the
right to challenge the constitutionality of 5 AAC 39.107(b), the
regulation requiring the permit-holder to be present when
commercial fishing gear is operated. See Cooksey v. State, 524
P.2d 1251 (Alaska 1974).
The defendants argue that 5 AAC 39.107(b) violates the
equal protection clause of the Alaska Constitution (Art. I, 1)
as well as the clause in Art. VIII, 17 that requires all
"regulations governing the use or disposal of natural resources
[to] apply equally to all persons similarly situated with
reference to the subject matter and purpose to be served by the
... regulation". We conclude that 5 AAC 39.107(b) is
constitutional, and we therefore affirm the defendants' convic
tions.
When determining whether legislation comports with the
equal protection clause of the Alaska Constitution, we employ a
"sliding" test that examines three factors: the importance of the
legislative purpose(s) protected or fostered by the legislation,
the importance of the individual interests adversely affected by
the legislation, and the means chosen by the legislature to
accomplish its purpose(s).
We first determine the importance of the
individual interest impaired by the
challenged enactment. We then examine the
importance of the state interest underlying
the enactment, that is, the purpose of the
enactment. Depending upon the importance of
the individual interest, the equal protection
clause requires that the state's interest
fall somewhere on a continuum from mere
legitimacy to a compelling interest.
Finally, we examine the nexus between the
state interest and the [enactment's] means of
furthering that interest. Again depending
upon the importance of the individual
interest, the equal protection clause
requires that the nexus fall somewhere on a
continuum from substantial relationship to
least restrictive means.
State v. Enserch Alaska Construction, Inc., 787 P.2d 624, 631-32
(Alaska 1989) (footnote omitted).
In Gilbert v. Department of Fish & Game, 803 P.2d 391,
398 (Alaska 1990), the supreme court stated that a challenge to
legislation under the "uniform application" provision of Article
VIII, Section 17 "may invoke more stringent review ... than
standard equal protection [review] under article I, section 1".
The supreme court has also stated:
In reviewing legislation which burdens
the equal access clauses of article VIII, the
purpose of the burden must be at least impor
tant [and the] means used to accomplish the
purpose must be designed for the least
possible infringement on article VIII's open
access values.
McDowell v. State, 785 P.2d 1, 10 (Alaska 1989).
The supreme court's pronouncements on Article VIII
might be interpreted to create a distinct constitutional analysis
for challenges based on the uniform application clause. However,
we think it is noteworthy that, in McDowell, the court tracked
the equal protection test, speaking of the importance of the
legislative purpose and the means used to accomplish it. It
appears that, when the supreme court analyzes legislation under
Article VIII, the court uses the same approach employed in its
equal protection cases, but, in recognition of the high
importance of citizens' equal access to natural resources, the
court requires the government to demonstrate both an "important"
legislative purpose and means narrowly tailored to accomplish
that purpose.1 This analysis comports with the court's
statements that legislation "impairing the important right to
engage in economic endeavor" must be supported by a legislative
purpose that is "not only legitimate, but important", and that
"the nexus between the enactment and the ... interest it serves
[must] be close". Enserch Alaska Construction, 787 P.2d at 633.
See also Commercial Fisheries Entry Comm'n v. Apokedak, 606 P.2d
1255, 1266 & nn.45-46 (Alaska 1980) (the right to engage in
commercial fishing is "important").
Both the supreme court and this court have recognized
that preservation of economic benefit and conservation of a
natural resource are two important goals underlying the
legislature's regulation of commercial fishing. Thus, the
legislature is generally authorized to strictly regulate
commercial fishing. Apokedak, 606 P.2d at 1265; State v.
Martushev, 846 P.2d 144, 145, 150 (Alaska App. 1993). The
defendants in this case do not question the legislature's
interest in regulating their industry. Instead, the defendants
assert that these legislative interests are not significantly
advanced by the requirement that the permit-holder be present on
the fishing boat.
The defendants argue, in essence, that the State may
have an interest in enforcing a permit system that limits the
number of people who engage in commercial fishing, but so long as
the number of boats taking fish does not exceed the number of
permits, there is no difference (as far as the State's interests
are concerned) whether a fishing boat is being operated by the
permit-holder or by someone else. We conclude, however, that
important governmental interests are advanced by requiring the
permit-holder's personal presence on board the fishing vessel.
A major benefit of requiring the permit-holder's
personal presence was addressed in State v. Ostrosky, 667 P.2d
1184 (Alaska 1983). In Ostrosky, the supreme court confronted an
equal protection challenge to AS 16.43.170(b), the statute
governing transfer and inheritance of commercial fishing permits.
One of the arguments accepted by the supreme court in favor of
the statute was that, by making the permits sellable, the
legislature encouraged permit-holders to act in ways that would
increase the value of their permits. Because the sale price of
these permits would "depend[] largely on the state of the
fishery", permit-holders wishing to preserve or enhance their
investment would be encouraged to "obey conservation laws, assist
in the apprehension of violators of those laws, and willingly
contribute to aquaculture programs". Ostrosky, 667 P.2d at 1194-
95.
The regulation requiring permit-holders to be present
on the vessel appears calculated to achieve these same ends. The
regulation prevents permit-holders from establishing themselves
as "absentee landlords" who would rent their permits to the
fishing equivalent of "sharecroppers". Without the requirement
of personal presence, permit-holders would be tempted to take
year-round, non-fishing jobs and supplement their income with the
rent paid by fishing crews for the use of their permits. As for
the crew doing the actual fishing, their interest would lie in
making the most money they could in a season, so that their after-
rent profit would be higher. The crew would have no long-term
interest in the health of the fishery resource; they would fish
with the knowledge that the permit-holder might choose to rent
the permit to another, higher-bidding crew next time.
If permit-holders were allowed to remain on shore,
renting their permits, the specter would be raised of consortiums
or partnerships becoming the renters of the majority of fishing
permits; these businesses would, in turn, sublet the permits to
actual fishing crews. Under such an arrangement, these permit
"wholesalers" might become the dominant power in the fishing
industry.
Even if the permit-holder and crew did not enter a
landlord-tenant relationship, the danger to the fishery would
still exist. The facts of the present case illustrate the
potential problem. Sammy Baker testified that when Jeffry Baker
and Alvin Tomlinson fished without him, he allowed them to take
the whole proceeds of the catch. Under this arrangement,
economic forces might encourage Tomlinson and the younger Baker
to take advantage of their limited opportunity for higher profit
by adhering less strictly to conservation and gear limitation
regulations.
We therefore conclude that requiring the permit-holder
to be personally present furthers important governmental
interests. The defendants nevertheless argue that these
governmental interests do not outweigh the permit-holder's "right
to engage in economic endeavor" and the "right of access to
natural resources" established by Article VIII, Section 17. We
do not perceive that requiring the permit-holder to be personally
present during fishing operations substantially impairs the
permit-holder's right to engage in commercial fishing or right of
access to the fishery. The regulation does impair the permit-
holder's ability to take another job and let someone else use the
permit to fish. However, the permit-holder has only a minimal
interest (if any) in being able to rent or loan his or her permit
to others outside the perimeters of existing law. We note that,
under 20 AAC 05.1740, emergency transfers of a CFEC permit are
allowed when unforeseen emergency or hardship prevents the permit-
holder from fishing.
The defendants raise an additional challenge to 5 AAC
39.107. They assert that it unconstitutionally differentiates
between permit-holders who are licensed to use mobile fishing
gear and permit-holders licensed to use stationary fishing gear.
As noted above, 5 AAC 39.107(b) and (c) require permit-holders of
mobile gear to be physically present during the operation of the
gear and to personally participate in the operation. The next
two sections of the regulation, 5 AAC 39.107(d) and (e), govern
permit-holders for stationary gear. Under 107(d)-(e), permit-
holders licensed to use stationary gear generally must also be
present during operation of the gear. However, 107(d)-(e) makes
two exceptions to this rule: stationary gear permit-holders may
leave the site of operation to sell the fish they have caught in
the gear or to travel to the site of any other stationary gear
they are licensed to operate, as long as they stay "within a
reasonable distance" of all their gear to insure their continuing
"competent supervision of the gear".
The defendants assert that this regulation unjustifi
ably grants the users of stationary gear greater rights than the
users of mobile gear. The State responds that the regulation
lawfully distinguishes between mobile gear and stationary gear
because the operators of mobile gear are not "similarly situated"
to operators of stationary gear. We agree. Fish purchasers do
not ordinarily visit set net sites. If stationary gear operators
were not allowed to leave the immediate site of the gear to sell
their catch, they would have to cease fishing in order to sell
their catch. The defendants respond that drift net fishers must
also cease fishing to sell their catch. However, stopping the
operation of a drift net is a much different task from
dismantling a set net. The Board of Fisheries could rationally
conclude that permit-holders for these two different types of
gear should be treated differently. See Meier v. State Board of
Fisheries, 739 P.2d 172 (Alaska 1987) (upholding a 48-hour
waiting period for fishers transferring from one district to
another against the argument that the waiting period unfairly
favored set net operators over drift net operators), and State v.
Reefer King Co., 559 P.2d 56, 65-66 (Alaska 1976) (upholding
differential treatment of floating fish processors and shore-
based fish processors), modified on other grounds on rehearing
562 P.2d 702 (Alaska 1977).
The defendants also attack two other portions of 5 AAC
39.107. Sections (f) and (g) of that regulation make special
provision for stationary gear permit-holders in the Yukon and
Yakutat districts:
(f) In the Yukon area ... , a person who
holds a CFEC permit for stationary fishing
gear must be present for the initial
deployment of the gear at the beginning of
the commercial fishing period and at the end
of the commercial fishing period to terminate
operation of the gear.
(g) In the Yakutat district south of 59
[degrees] 40 [minutes] [North latitude] in
Yakutat Bay, a fishing site under
AS 16.05.253(b) includes the CFEC permit
holder's permanent place of residence in
Yakutat.
The defendants argue these sections unjustifiably give greater
freedom to stationary gear operators in the two districts.
As the State points out in its brief, section (f)
appears to strengthen, not relax, the requirement of the permit-
holder's presence: even in circumstances when sections (d) and
(e) might allow the permit-holder to be absent from the immediate
site of the gear, the permit-holder must nevertheless be present
at the immediate site of stationary gear for the opening and
closing of each commercial fishing period.
As to section (g), the State asserts that this section
merely recognizes the fact that the village
of Yakutat is geographically ... adjacent to
the sites at which fishing operations are
conducted in the portion of the district
covered by the regulation. Set net fishermen
at this location have not ordinarily
constructed additional shelters or cabins[,]
since the village is so close to the actual
fishing sites[.] [C]lose supervision of gear
and the accountability of permit holders can
be accomplished by allowing permittees to
monitor their gear from their residence[s] in
Yakutat.
The State's explanation of section (g), which is unrebutted by
the defendants, provides a rational basis for the distinction
drawn in that section among stationary gear operators.
For these reasons, we reject the defendants'
constitutional challenges to 5 AAC 39.107. We conclude that this
regulation violates neither the equal protection clause of
Article I, Section 1 nor the uniform application clause of
Article VIII, Section 17.
The judgements of the district court are AFFIRMED.
_______________________________
* Sitting by assignment of the chief justice made pursuant
to Article IV, Section 16 of the Alaska Constitution.
1 Since McDowell, the court has continued to use equal
protection language in Article VIII cases. See Gilbert, 803 P.2d
at 399, in which the court upheld different harvest quotas for
different fisheries because fishers in different fisheries were
not "similarly situated" and because the quotas reasonably
furthered resource conservation. Similarly, in Alaska Fish
Spotters Assn. v. State, 838 P.2d 798, 803-04 (Alaska 1992), the
court summarily rejected a claim that a ban on fish spotting
violated the uniform access clause, stating that the clause was
not violated because "the regulation applied equally to all
citizens".
