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State v. Rozak (5/31/2002) ap-1805
State v. Rozak (5/31/2002) ap-1805
NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers
are encouraged to bring typographical or other formal
errors to the attention of the Clerk of the Appellate
Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
STATE OF ALASKA, )
) Court of Appeals No.
A-7980
Appellant, )
Trial Court No. 3KN-00-1012 Cr
)
v. )
) O P I N
I O N
GREGORY ARTHUR ROZAK, )
)
Appellee. )
[No. 1805 - May 31, 2002]
)
Appeal from the District Court, Third Judi
cial District, Kenai, David S. Landry,
Magistrate.
Appearances: Sabrina E. L. Fernandez and
Lance B. Nelson, Assistant Attorneys General,
Anchorage, and Bruce M. Botelho, Attorney
General, Juneau, for Appellant. Arthur S.
Robinson, Robinson & Beiswenger, Soldotna,
for Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
This appeal requires us to interpret 5 AAC 39.107, a
regulation enacted by the Board of Fisheries to govern the
operation of fishing gear. This regulation establishes a general
rule that people who own a permit to operate stationary fishing
gear (e.g., set nets or fish wheels) must remain at the site of
their gear while it is operating. Gregory Arthur Rozak is a Cook
Inlet set netter who was prosecuted for violating this
requirement. This appeal arose when the district court dismissed
the prosecution against Rozak.
The underlying question is the meaning of subsection
(f) of 5 AAC 39.107. Magistrate David S. Landry concluded that
subsection (f) exempted permit holders in the Yukon-Northern
fishing area from the normal requirement that they remain at the
site of their fishing gear while it is operating. Magistrate
Landry then concluded that this exemption was unreasonable - that
the disparate treatment was not justified by any purported
difference between the Yukon-Northern fishing area and other
fishing areas of the state. Based on these conclusions,
Magistrate Landry ruled that 5 AAC 39.107 unfairly discriminated
against Rozak and all other stationary gear permit holders who
fished outside the Yukon-Northern area.
As explained in more detail below, we have examined the
language of the regulation and we have also reviewed the audio
tapes of the Board of Fisheries' discussion when they drafted and
enacted subsection (f). Based on our review, we conclude that
the district court misinterpreted this subsection. The Board of
Fisheries' discussion shows that subsection (f) was not intended
to exempt Yukon-Northern area permit holders from the normal
requirement that they remain at the site of their gear while it
is operating. Rather, the Board of Fisheries intended subsection
(f) to clarify or augment those restrictions for permit holders
in the Yukon-Northern area.
To the extent that 5 AAC 39.107(f) might call for
disparate treatment among permit holders, it is Yukon-Northern
permit holders who face greater restrictions, and thus Rozak (a
Cook Inlet permit holder) is a beneficiary of the disparate
treatment. For this reason, we reverse the decision of the
district court and reinstate the prosecution against Rozak.
The regulatory language at issue in this appeal
Subsection (d) of 5 AAC 39.107 establishes
the general rule that a person who owns a permit to
operate stationary fishing gear "must be physically
present at a beach or riparian fishing site during the
operation of [the] stationary fishing gear at the
site". Subsection (d) allows a permit holder to leave
an active fishing site for only two purposes: to
travel to or from the location of "a sale of fish
caught in [their] gear", or to travel to or from the
location of "other stationary gear of the [same] permit
holder".
Subsection (e) of 5 AAC 39.107 clarifies
these two exceptions to the requirement of physical
presence. This subsection declares that when a permit
holder travels to a point of sale or to the location of
their other stationary gear, the permit holder "shall
[remain] within a reasonable distance of the gear".
Subsection (e) then defines "reasonable distance" to
mean "a distance that ensures that the ... permit
holder retains competent supervision of the gear".
These two subsections are augmented by
subsection (f), and this subsection is the crux of the
present appeal. Subsection (f) announces a special
rule for stationary gear permit holders in the "Yukon
area ... described in 5 AAC 05.100". (The reference to
"Yukon" appears to be a clerical mistake; according to
5 AAC 05.100, the name of this fishing area is
officially the "Yukon-Northern" area.1) Under
subsection (f), a permit holder for stationary fishing
gear in the Yukon-Northern area "must be physically
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". The issue is whether this
requirement is intended to supersede or, instead,
supplement the restrictions codified in subsections (d)
and (e).
The meaning of subsection (f)
This court addressed the meaning of 5 AAC
39.107(f) in Baker v. State, 878 P.2d 642 (Alaska App.
1994). In Baker, we declared that subsection (f)
"appears to strengthen, not relax, the requirement of
the permit-holder's presence".2 Specifically, we
interpreted subsection (f) as meaning that
even in circumstances when [sub]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.
Baker, 878 P.2d at 647.
In the present case, Magistrate
Landry was aware of our decision in Baker,
but he evidently concluded that we had
misread the regulation.
Now, in addition to examining the
language of the regulation, we have also
reviewed the audio tapes of the Board of
Fisheries' discussion when they drafted and
enacted subsection (f). Based on our review
of this legislative history, we confirm our
earlier interpretation of the regulation.
The Board of Fisheries' discussion shows that
subsection (f) was not intended to exempt
Yukon-Northern area permit holders from the
normal requirement that they remain at the
site of their gear while it is operating.
Rather, the Board of Fisheries intended that
all permit holders continue to be bound by
the normal restrictions on their movement;
subsection (f) was meant to clarify or
augment those restrictions for permit holders
in the Yukon-Northern area.
Subsection (f) was first proposed
to the Board of Fisheries for the purpose of
addressing certain difficulties that had
arisen when law enforcement officers
attempted to enforce subsections (d) and (e)
in the Yukon-Northern fishing area. As
explained above, subsections (d) and (e),
taken together, require stationary gear
permit holders to remain at the site of their
gear whenever it is operating, except when
the permit holders are selling fish or
tending to their other stationary gear, in
which case they must remain within a
"reasonable distance" of their gear so as to
maintain "competent supervision" over it.
Subsection (f) was initially drafted to
clarify what "reasonable distance" meant in
the Yukon-Northern fishing area.
In the Yukon-Northern area, permit
holders would sometimes travel long distances
to sell their fish.3 This long travel meant
that permit holders would be absent from
their gear for relatively long periods.
These lengthy absences created an enforcement
problem for fish and wildlife protection
officers: when the officers found unattended
stationary gear, they could not be sure
whether the permit holder was violating the
law or was instead engaged in a lengthy but
authorized absence to sell their fish or
attend to their other stationary gear.4
There was also confusion concerning
how far permit holders could range from their
stationary gear. One fish and wildlife
protection officer apparently had interpreted
"reasonable distance" to mean "shouting
distance" - effectively making it impossible
for permit holders to keep their gear
operating if they had to travel any distance
to sell fish or tend to their other gear.5
To address these problems, the
Board initially contemplated adopting a
supplemental definition of "reasonable
distance" for the Yukon-Northern area. As
proposed, "reasonable distance" in the Yukon-
Northern area would mean "a distance that
ensures that the ... permit holder is capable
of removing the gear [from the water] or
stopping the operation of the gear at the end
of the fishing period."6 Eventually,
however, the Board decided not to change the
definition of "reasonable distance" in
subsection (e). As explained by Board
Chairman Bud Hodson:
[I]f a trooper landed at a site and the
permit holder wasn't there, and say the
permit holder came back two and one-half
hours later and the trooper asked him, "Where
have you been?" and he said, "I've been
delivering fish" and ... the trooper says,
"Where?" and he says, "Well, down there at
Nulato [on the Yukon River]," and the trooper
says, "Wait a minute - that's only a fifteen-
minute boat ride, you've been gone for two
and one-half hours or three hours," that ...
would mean that he didn't just go deliver
fish and [that circumstance] probably would
be able to be construed that he wasn't in
competent supervision. On the other hand, if
the person came back after two and one-half
hours and said, "Hey, I just went on a forty-
mile boat ride down here to deliver my fish,
you can go check the fish ticket and I've got
witnesses - you know, it takes me one hour
and forty minutes to get there and one hour
and forty minutes to come back, and I was
there ten minutes, and this regulation
[allows] me to do that because it says I can
go deliver my fish at a reasonable distance",
we felt that it was at the discretion of the
trooper and that if somebody was going to be
gone for a lengthy amount of time that they
probably could make a case. But we just
couldn't see any other way to more closely
define [reasonable distance] to help out
[enforcement officers] to try to make a case
on somebody who really wasn't tending their
gear.
Board of Fisheries debate on Proposal 356
(February 27, 1990).
Instead of amending the definition
of "reasonable distance", the Board enacted
subsection (f). Based on Chairman Hodson's
statements during the debate, the intent of
this new subsection was to clarify that,
notwithstanding a permit holder's right to be
absent from their stationary gear under
subsections (d) and (e), permit holders in
the Yukon-Northern area were obliged to be
physically present when they deployed their
gear at the start of the fishing period and
when they stopped the operation of the gear
at the end of the fishing period.7
The Board's discussion as a whole
indicates that their objective in enacting
subsection (f) was to balance the state's
interest in ensuring that permit holders
maintain competent supervision over their
gear against the permit holders' interest in
keeping their gear running while they
transported fish over long distances to
points of sale. The Board's discussion also
clarifies that subsections (d) and (e) were
intended to apply to stationary gear permit
holders throughout the state - including the
Yukon-Northern area - while subsection (f)
would apply only to permit holders within the
Yukon-Northern area.8
Conclusion
The district court's decision to dismiss the
prosecution against Rozak was premised on the
court's conclusion that 5 AAC 39.107(f) unlawfully
discriminated in favor of stationary gear permit
holders within the Yukon-Northern area by
exempting them from the movement restrictions
codified in 5 AAC 39.107(d)-(e). As just
explained, this conclusion was erroneous.
Subsections (d) and (e) apply to all stationary
gear permit holders within the state, including
permit holders who operate stationary gear within
the Yukon-Northern area. Subsection (f) does not
supersede subsections (d) and (e); rather, it
supplements these provisions. To the extent that
subsection (f) calls for disparate treatment of
Yukon-Northern area permit holders, Rozak is a
beneficiary of this disparity.
For these reasons, the judgement of the
district court is REVERSED. The district court is
directed to reinstate the prosecution against
Rozak.
_______________________________
1 5 AAC 05.100 states: "The Yukon-Northern Area includes
all waters of Alaska between the latitude of Point Romanof
and the latitude of the westernmost point of the Naskonat
Peninsula, including those waters draining into the Bering
Sea, and all waters of Alaska north of the latitude of the
westernmost tip of Point Hope and west of 141 W. long.,
including those waters draining into the Arctic Ocean and
the Chukchi Sea."
2 Id. at 647.
3 See Board of Fisheries debate on Proposal 356 (February
26, 1990). Before it was amended to its final form,
the proposed amendment read:
In the Yukon area, a person who holds a crew
member fishing license may operate stationary
fishing gear under supervision of a CFEC permit
holder who is within a reasonable distance of
that gear. A reasonable distance means a
distance that ensures that the CFEC permit
holder is capable of removing the gear or
stopping the operation of the gear at the end
of the fishing period.
4 See Board of Fisheries debate on Proposal 356 (February
26, 1990), statement of Captain Gilson, Alaska State
Troopers, Fish and Wildlife Protection Division.
5 See Board of Fisheries debate on Proposal 356 (February
26, 1990), statement of Rich Cannon, Alaska Department
of Fish and Game.
6 See Board of Fisheries Proposal 356.
7 See Board of Fisheries debate on Proposal 356 (February
27, 1990), statement of Chairman Hodson.
8 Id.
