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THE COURT OF APPEALS OF THE STATE OF ALASKA
STATE OF ALASKA, )
)
Appellant, ) Court of Appeals No. A-5397
) Trial Court No. 3DI-S93-429CR
v. )
)
MARIE ARNARIAK, ) O P I N I O N
)
Appellee. )
______________________________)
)
STATE OF ALASKA, )
)
Appellant, ) Court of Appeals No. A-5398
) Trial Court No. 3DI-S93-427CR
v. )
)
ADAM ARNARIAK, )
)
Appellee. ) [No. 1406 - April 21, 1995]
______________________________)
Appeal from the District Court, Third
Judicial District, Dillingham, Milton M.
Souter, Judge.
Appearances: Kevin M. Saxby, Assistant
Attorney General, Anchorage, and Bruce M.
Botelho, Attorney General, Juneau, for
Appellant. Frederick Torrisi, Dillingham,
for Appellee Marie Arnariak. David B.
Snyder, Assistant Public Defender,
Dillingham, and John B. Salemi, Public
Defender, Anchorage, for Appellee Adam
Arnariak. Bruce Baltar, Dillingham, for
Bristol Bay Native Association and Togiak
Traditional Council as Amici Curiae.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
COATS, Judge.
Round Island is one of a group of islands in Bristol
Bay that have collectively been established by Alaska Statute as
the Walrus Islands State Game Sanctuary. See AS 16.20.092. A
state regulation restricts access to Round Island to those who
hold a state-issued permit. 5 Alaska Administrative Code 92.066.
Permit holders visiting Round Island must abide by several rules,
one of which is that the "discharge of firearms, disturbance or
harassment of wildlife, removal of wildlife or parts of
wildlife . . . are all prohibited on Round Island." 5 AAC
92.066(2)(D).
According to the complaints filed against them, Adam
and Marie Arnariak entered Round Island without the required
permits on June 21, 1993, and Adam fired a rifle at a walrus on
the island. Initially, both Arnariaks were charged with entering
the island without a permit, and Adam was also charged with
hunting walrus in a closed area in violation of 5 AAC
92.510(a)(13)(A). The state subsequently filed an information
replacing the original hunting complaint against Adam with a
charge that Adam had violated 5 AAC 92.066(2)(D) by discharging a
firearm on Round Island.
The Arnariaks moved to dismiss the charges on the
ground that the state regulations were preempted by the federal
Marine Mammal Protection Act (MMPA), 16 U.S.C. 1361-1421h.
Judge Milton Souter granted the motion to dismiss. The state now
appeals the order dismissing the charges against the Arnariaks.
In addition to the usual briefing, the Bristol Bay Native
Association and the Togiak Traditional Council have filed an
amicus brief urging this court to uphold Judge Souter's decision.
Section 101 of the MMPA imposes "a moratorium on the
taking and importation of marine mammals and marine mammal
products." 16 U.S.C. 1371(a). Subsection (b) of that statute
provides in relevant part:
(b) Exemptions for Alaskan natives. Except
as provided in section 109 [16 U.S.C.
1379], the provisions of this Act shall not
apply with respect to the taking of any
marine mammal by any Indian, Aleut, or Eskimo
who resides in Alaska and who dwells on the
coast of the North Pacific Ocean or the
Arctic Ocean if such taking--
(1) is for subsistence purposes; or
(2) is done for purposes of creating and
selling authentic native articles of
handicrafts and clothing . . . ; and
(3) in each case, is not accomplished in
a wasteful manner.
Section 109 of the MMPA contains an express preemption clause,
with
a provision specifically addressed to the State of Alaska:
(a) State enforcement of State laws or
regulations prohibited without transfer to
State of management authority by Secretary.
No State may enforce, or attempt to enforce,
any State law or regulation relating to the
taking of any species (which term for
purposes of this section includes any
population stock) of marine mammal within the
State unless the Secretary has transferred
authority for the conservation and management
of that species (hereinafter referred to in
this section as "management authority") to
the State under subsection (b)(1).
. . . .
(f) Transfer of management authority to State
of Alaska. (1) The Secretary may not transfer
management authority to the State of Alaska
under subsection (b)(1) for any species of
marine mammal unless--
(A) the State has adopted and will
implement a statute and regulations that
insure that the taking of the species for
subsistence uses--
(i) is accomplished in a nonwasteful
manner,
(ii) will be the priority consumptive
use of the species, and
(iii) if required to be restricted, such
restriction will be based upon--
(I) the customary and direct dependence
upon the species as the mainstay of liveli-
hood,
(II) local residency, and
(III) the availability of alternative
resources.
16 U.S.C. 1379. The State of Alaska has not maintained
regulations containing a preference for rural subsistence hunting
of marine mammals, and the federal government has not transferred
management authority for marine mammals to the State of Alaska.
The United States Constitution and the laws of the
United States are the supreme law of the land. U.S. Const. art.
VI. "Where a state [law] conflicts with or frustrates federal
law, the former must give way." CSX Transp., Inc. v. Easterwood,
113 S. Ct. 1732, 1737 (1993).
Federal preemption of state laws "may be either express
or implied, and is compelled whether Congress' command is
explicitly stated in the statute's language or implicitly
contained in its structure and purpose." FMC Corp. v. Holliday,
111 S. Ct. 403, 407 (1990) (internal quotation marks omitted).
If a federal statute contains an express preemption clause, the
task of statutory construction will first focus on the plain
wording of the clause. CSX Transp., 113 S. Ct. at 1737. And
"[w]here . . . Congress has expressly included a broadly worded
pre-emption provision in a comprehensive statute . . . [the] task
of discerning congressional intent is considerably simplified."
Ingersoll-Rand Co. v. McClendon, 111 S. Ct. 478, 482 (1990).
The Arnariaks argue that 5 AAC 92.066 is expressly
preempted under 16 U.S.C. 1379. We agree that federal law
expressly preempts state regulation relating to the taking of
walrus on Round Island.
The state argues, however, that the MMPA's prohibition
against the enforcement of "State law[s] or regulation[s]
relating to the taking of any species . . . of marine mammal
within the State" does not preclude the state from enforcing 5
AAC 92.066 because that provision is not a hunting regulation,
but rather a "land use regulation." However, the U.S. Supreme
Court has repeatedly held that Congress' use of the phrase
"relating to" in an express preemption clause connotes an intent
to preempt state law on a broad scale.
In Morales v. Trans World Airlines, Inc., 112 S. Ct.
2031 (1992), the Court held that state guidelines for advertising
of fares by airlines were preempted by the provision of the
federal Airline Deregulation Act (ADA) prohibiting states from
enacting or enforcing any law "relating to rates, routes, or
services of any air carrier." The Court interpreted the ADA
preemption clause as preempting all "[s]tate enforcement actions
having a connection with or reference to airline 'rates, routes,
or services.'" 112 S. Ct. at 2037.
Just as the state in this case argues that the MMPA
precludes only state enactments directly regulating hunting, the
state in Morales argued that the ADA only prevented the states
from "actually prescribing rates, routes, or services." Id. The
Court rejected this claim in no uncertain terms: "This simply
reads the words 'relating to' out of the statute. Had the
statute been designed to pre-empt state law in such a limited
fashion, it would have forbidden the States to 'regulate rates,
routes, and services.'" Id. at 2037-38 (emphasis in original).
The Court also rejected the notion that "only State laws
specifically addressed to the airline industry are pre-empted,
whereas the ADA imposes no constraints on laws of general
applicability." Id. In the Court's view, "[b]esides creating an
utterly irrational loophole (there is little reason why state
impairment of the federal scheme should be deemed acceptable so
long as it is effected by the particularized application of a
general statute), this notion similarly ignores the sweep of the
'relating to' language." Id. at 2038. See American Airlines,
Inc. v. Wolens, 115 S. Ct. 817 (1995)(holding that the preemption
clause of the ADA precludes the state from enforcing the Illinois
Consumer Fraud Act for allegedly fraudulent advertising of the
terms of an airline's frequent flyer program).
In a number of cases the Supreme Court has given an
expansive reading to the preemption clause ( 514(a)) of the
Employee Retirement Income Security Act (ERISA), which provides:
"Except as provided in subsection (b) of this section [the saving
clause], the provisions of this subchapter and subchapter III of
this chapter shall supersede any and all State laws insofar as
they may now or hereafter relate to any employee benefit plan."
29 U.S.C. 1144(a). The Court has called this preemption clause
"conspicuous for its breadth." FMC Corp., 111 S. Ct. at 407. In
another case, the Court held that "[t]he breadth of 514(a)'s
pre-emptive reach is apparent from that section's language. A
law 'relates to' an employee benefit plan, in the normal sense of
the phrase, if it has a connection with or reference to such a
plan." Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96-97 (1983)
(footnote omitted).
In a case holding that state common law tort and
contract actions against insurance companies asserting improper
processing of claims for benefits under an insured employee
benefit plan were preempted by ERISA, the Court called ERISA's
preemption provision "deliberately expansive," and noted again
"the expansive sweep of [ERISA's] pre-emption clause." Pilot
Life Ins. Co. v. Dedeaux, 481 U.S. 41, 46-47 (1987). A similarly
broad reading is found in Ingersoll-Rand, 111 S. Ct. at 478, in
which the Court held that ERISA preempted a state common law
claim that an employee was unlawfully discharged to prevent his
attainment of benefits under a plan covered by ERISA. See
Andrews v. Alaska Operating Eng'rs-Employers Training Trust Fund,
871 P.2d 1142 (Alaska), cert. denied, 115 S. Ct. 201 (1994)
(holding that ERISA preempts an action under state law in which a
former fiduciary of an employee benefit plan governed by ERISA
claimed that he had been wrongfully terminated in order to
prevent him from reporting possible misuse of trust funds by
another fiduciary).
These authorities make it clear that the MMPA provision
preempting state laws "relating to the taking of any species
. . . of marine mammal" is to be read broadly. The history of
the Walrus Islands regulations under which the state charged the
Arnariaks makes it clear that those regulations "relate to" the
taking of walrus. 5 AAC 92.066 is part of a comprehensive scheme
of state statutes and regulations with the primary purpose of
protecting and preserving walrus on the Walrus Islands. The
specific enabling statutes for 5 AAC 92.066 are those creating
the Walrus Islands State Game Sanctuary (AS 16.20.090-.094).
These statutes include legislative findings that "the Walrus
Islands are the sole remaining place in the state where walruses
annually haul out on land," that the islands "have great
importance as a retreat for the Pacific walrus," and that "[t]he
purpose of AS 16.20.090-16.20.098 is to protect the walruses and
other game on the Walrus Islands." AS 16.20.090. The statutes
authorize the Boards of Fisheries and Game to adopt regulations
governing entry, hunting and fishing, and other uses or
activities on the islands "for the purpose of preserving the
natural habitat and the fish and game of the Walrus Islands State
Game Sanctuary." AS 16.20.094.
Both the specific prohibition against discharging a
weapon on Round Island, under which Adam Arnariak was charged,
and the general requirement upon which an entry permit is
conditioned -- that the rule against discharging weapons will be
followed -- are clearly "related to the taking" of walrus.1 The
MMPA defines "take" as "to harass, hunt, capture, or kill, or
attempt to harass, hunt, capture, or kill any marine mammal." 16
U.S.C. 1362(13). 5 AAC 92.066(2)(D) prohibits the "discharge
of firearms, disturbance or harassment of wildlife . . . on Round
Island." (Emphasis added).
The state's protestation that the regulation is
intended to protect other game as well as walruses is unavailing.
Preemption of laws "relating to" a subject encompasses not only
those laws "specifically addressed to" the subject, but also
"laws of general applicability" that relate to the subject.
Morales, 112 S. Ct. at 2038. It is possible that "[s]ome state
actions may affect [the taking of marine mammals] in too tenuous,
remote, or peripheral a manner" for the MMPA to have preemptive
effect. Morales, 112 S. Ct. at 2040 (quoting Shaw, 463 U.S. at
100 n.21). The state regulation at issue here, however, "plainly
does not present a borderline question." Id.
Because 5 AAC 92.066 relates to the taking of a species
of marine mammal, it may not be enforced against the Arnariaks.
The district court therefore did not err in dismissing the
charges against the couple. The district court's order
dismissing the charges against Adam and Marie Arnariak is
AFFIRMED.
_______________________________
1 The state argues that interpreting the MMPA to preempt 5 AAC
92.066 would render the MMPA unconstitutional under the fifth and
tenth amendments to the United States Constitution. Although the
state does not request this court to rule on the
constitutionality of the MMPA, it contends that the possibility
of rendering the MMPA unconstitutional is a factor that we should
consider in deciding the scope of the MMPA's preemption clause.
In our view, however, the clarity of the preemption clause's
language and the strong body of case law interpreting the term
"relating to" preclude our giving any significant weight to the
potential unconstitutionality of the MMPA as a factor in
determining the scope of the preemption clause. We express no
opinion as to the merits of the state's fifth and tenth amendment
arguments.
