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303 K Street, Anchorage, Alaska 99501
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| MARVIN L. CHARLES SR., | ) |
| ) Court of Appeals No. A-10202 | |
| Appellant, | ) Trial Court No. 1KE-06-1018 CR |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) |
| ) No. 2266 June 11, 2010 | |
Appeal from the District Court, First Judi
cial District, Ketchikan, Trevor N.
Stephens, Judge.
Appearances: Glenda J. Kerry, Law Office of
Glenda J. Kerry, Girdwood, for the
Appellant. Stephen R. West, District
Attorney, Ketchikan, and Daniel S. Sullivan,
Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Bolger, Judges.
BOLGER, Judge.
MANNHEIMER, Judge, concurring.
Marvin L. Charles Sr. was convicted of violating
several state hunting regulations related to the taking of does
on Prince of Wales Island. Charles argues that he was entitled
to an evidentiary hearing in district court to show that the
hunting regulations were invalid because they conflicted with
federal law requiring a priority for subsistence hunting. We
uphold the district courts decision to deny the hearing because
Charles did not raise any factual dispute about the validity of
the regulations.
Facts and proceedings
Charles was convicted of five counts of unlawful
possession or transportation of game,1 four counts of unlawful
possession or transportation of game that had evidence of sex
removed,2 and hunting without the required harvest ticket.3
Charless violations all involved deer shot on federal land on
Prince of Wales Island in September 2006. Only antlered bucks
could be hunted on Prince of Wales Island at the time.4 However,
Charles admitted that at least three of the deer that were taken
by his hunting party were does.5
Before trial, Charles moved for dismissal of the
charges, arguing that the state regulations conflicted with the
subsistence priority mandated by the Alaska National Interest
Lands Conservation Act of 1980 (ANILCA).6 Charles argued that
the state regulations were defective because they did not
establish a priority for subsistence use as required by ANILCA,
and therefore encouraged depletion of a resource that Congress
specifically directed be used for the primary purpose of non-
wasteful subsistence. Charles asserted that non-subsistence
hunters had decreased the population of bucks, exerting an ever-
increasing pressure on subsistence users efforts to feed
themselves and their families by means of their traditional
subsistence way of life.
Charles also asked for an evidentiary hearing to
establish that he was entitled to defend against the charges at
trial by showing that (1) the deer were taken for subsistence
purposes and (2) the state regulations were unreasonable because
they failed to provide him an opportunity to satisfy his
subsistence needs.
Superior Court Judge Trevor N. Stephens, sitting in
the district court, denied the motion to dismiss. Relying on
Totemoff v. State,7 Judge Stephens ruled that ANILCA did not
preempt the state from regulating hunting on federal lands in
Alaska as long as the regulations did not conflict with federal
law. He ruled that the state regulation allowing hunting by non-
subsistence hunters on Prince of Wales Island did not conflict
with federal law because the responsible federal agencies had
also not restricted non-subsistence hunting in the area. Judge
Stephens also found that Charles had not offered any evidence to
show that there was a dangerously skewed buck-to-doe ratio on
Prince of Wales Island, or that there was no valid reason under
ANILCA to limit the hunting of does.
Charles filed a motion to reconsider, again requesting
an evidentiary hearing. In his motion to reconsider, Charles
conceded that the pertinent federal regulations governing hunting
on Prince of Wales Island almost mirrored state regulations. He
clarified that his claim was that the federal and state
regulations both deprived him of ANILCAs subsistence priority by
placing him on equal footing with non-subsistence hunters. He
asserted that a hearing would show that the pressure put on game
by non-subsistence users has, in fact[,] been recognized by the
Federal Subsistence Board, but that it has not been adequately
addressed to preserve [his] subsistence hunting needs.
In denying the motion to reconsider, Judge Stephens
acknowledged that Charles had the right to challenge the validity
of the regulations he was charged with violating. But he noted
that Charles appeared to concede that the Federal Subsistence
Board had considered the concerns he was raising and had decided
not to further restrict deer hunting on Prince of Wales Island.
He concluded that Charles was attempting to raise what was in
essence an appeal of an administrative decision.
At trial, Charles raised the affirmative defense of
necessity with respect to all the charges except the charge of
hunting without a harvest ticket, arguing that the deer were
taken due to dire emergency.8 He testified that he went on an
overnight fishing trip with relatives and friends and was trapped
on Prince of Wales Island by rough seas. He testified that the
deer were shot when his fishing party ran out of food. The jury
rejected that defense and convicted Charles of all counts. He
now appeals.
Discussion
Charles has not explained how two of the regulations
he was convicted of violating the regulations requiring hunters
to have deer harvest tickets and to leave the deers sex
identification attached interfered with his subsistence rights.
Charles has therefore waived his challenge to those regulations
by inadequate briefing.9
This leaves the five counts of unlawfully possessing
or transporting game. The jury was instructed that those five
counts could be proved in two ways: the State could prove that
Charles possessed or transported deer that were taken without a
deer harvest ticket, or the State could prove that Charles
possessed or transported does that were taken in violation of the
harvest limit that allowed only the taking of antlered bucks.
The jury did not specify which theory it relied on to convict
Charles. Therefore, we are required to reverse Charless
convictions on those five counts if he establishes that the
harvest limit is invalid.10
Charles particularly challenges the district courts
decision to deny his motion without an evidentiary hearing. The
entitlement to a hearing is generally governed by Alaska Criminal
Rule 42. A moving party must include a detailed statement of
material facts and all documentary evidence that supports a
motion.11 The court is not required to hold a hearing on a
motion if material issues of fact are not presented in the
pleadings.12
Was Charles entitled to a hearing to establish a
subsistence defense?
Charless first claim is that he was entitled to raise
a subsistence defense to the charges against him, and that Judge
Stephens should have granted him an evidentiary hearing to
present evidence in support of that defense. In support of this
claim, Charles cites the Ninth Circuits decision in United States
v. Alexander.13
Alexander involved defendants convicted in federal
court for the interstate transport of herring roe taken or sold
in violation of Alaska law.14 The government claimed that the
defendants had violated the regulation that prohibited the sale
of herring roe caught for subsistence, and the state regulation
that set catch limits for herring roe.15 On appeal to the Ninth
Circuit, the defendants argued that those state regulations were
invalid because they interfered with customary trade, a
subsistence use protected by ANILCA.16 The Ninth Circuit
concluded that the sale of herring roe was a protected
subsistence use that fell within ANILCAs definition of customary
trade, and that Alaskas blanket prohibition on such sales
conflicted with ANILCA.17 The court did not strike down the
regulation, however, instead holding that the defendants would be
entitled to acquittal if they proved by a preponderance of the
evidence that they were engaged in customary trade under
ANILCA.18
Alexander is not binding on this court.19 But even if
it were, it would only control the cases in which a state
regulation interfered with customary trade as defined in
ANILCA.20 Charles has not alleged that the regulations at issue
in his case impeded customary trade, or that state regulators
failed to take proper account of customary trade when they set
the harvest limit for deer on Prince of Wales Island.
If anything, Alexander suggests that Charles was not
entitled to an evidentiary hearing. The defendants in Alexander
also challenged the state regulation establishing harvest limits
for herring roe, arguing that the Board of Fisheries had
neglected to allow for sales made in customary trade when it
established the harvest limits.21 The Ninth Circuit declined to
consider that claim because the defendants had presented no
evidence of what was considered by the Board of Fisheries when it
adopted the harvest limits nor any record of the Boards
proceedings.22 Likewise in this case, Charles offered no record
of administrative proceedings and no evidence of what was
considered by the Board of Game when it adopted the harvest limit
that prohibited the taking of does. We conclude that Charles was
not entitled to a hearing under the reasoning of Alexander.
Charles may be arguing more broadly that ANILCA
entitled him to defend against the criminal charges at trial by
showing that (1) the deer were shot for non-wasteful subsistence
purposes and (2) the harvest limit was unreasonable because it
did not provide him an opportunity to satisfy his subsistence
needs. But such a defense is precluded by State v. Eluska.23 In
Eluska, the defendant killed a deer out of season and was charged
with possessing or transporting game taken in violation of state
hunting laws.24 In his defense, he claimed that the Boards
regulations failed to differentiate between subsistence hunting
and other hunting as required by statute.25
The Alaska Supreme Court ruled that Eluska had no
right to hunt for subsistence in the absence of a regulation
authorizing such hunting.26 The supreme court rejected the view
that an agencys failure to act in accordance with a statutory
requirement means that those who are regulated by the agency may
act as though they were not regulated.27 Based on Eluska, we
conclude that Charles was not entitled to defend against these
charges by asserting that the does were shot for subsistence
purposes.
Was Charles entitled to a hearing to challenge the
validity of the state regulations?
The remaining question is whether Charles was entitled
to an evidentiary hearing to show that the state regulation was
inconsistent with the subsistence priority mandated by ANILCA.
In Totemoff, the supreme court held that Congress in enacting
ANILCA only preempted enforcement of state hunting laws when
there was actual conflict between state and federal law.28 There
is an actual conflict between state and federal law if the state
law conflicts with the federal law to the extent that (a) it is
impossible to comply simultaneously with both or (b) the state
regulation obstructs the execution of the purpose of the federal
regulation.29
In Totemoff, the defendant was charged with violating
a state regulation that prohibited hunting with the aid of a
spotlight.30 There was no direct conflict between the states
anti-spotlighting regulation and any federal statute or
regulation because a federal subsistence hunting regulation also
prohibited taking game with the aid of a spotlight.31
There is likewise no actual conflict with ANILCA in
this case because Charless conduct was illegal under both state
and federal hunting regulations. Alaskas regulation authorized
deer hunting on Prince of Wales Island for residents and
nonresidents from August 1 to December 31 and set a harvest limit
of four bucks.32 Federal subsistence regulations authorized
rural Alaska residents to hunt deer on Prince of Wales Island
from July 24 to December 31 and set a limit of five deer, but
only one of those deer could be an antlerless deer, and the
antlerless deer had to be taken between October 15 and December
31.33 Charless conduct took place in September 2006, at a time
when both state and federal regulations prohibited the hunting of
does.
Charles nevertheless claims that the state regulation
conflicts with ANILCA because nonresidents have depleted the buck
population, leaving too few bucks to meet his subsistence hunting
needs. He asserts that pressure put on game by non-subsistence
users has, in fact[,] been recognized by the Federal Subsistence
Board, but that it has not been adequately addressed to preserve
Mr. Charless subsistence needs. He argues that these assertions
created disputed issues of material fact with respect to the
validity of the state and federal regulations and that he was
entitled to a hearing to resolve this dispute.
In Totemoff, the supreme court clarified that Eluska
did not prevent a subsistence hunter from arguing that the
regulation he was charged with violating was invalid.34 In this
case, Charles asserted in general terms that the regulation gave
inadequate priority to subsistence needs, and that the Federal
Subsistence Board was aware of the pressure put on game by non-
subsistence users but had not adequately addressed the problem.
But Charles did not provide the court with any record of
administrative proceedings to show that state or federal
regulators failed to follow required procedures in enacting the
regulation, or that the regulation at its inception was otherwise
arbitrary, unreasonable, or an abuse of discretion.35 In other
words, Charless assertions, without more, did not establish that
he could be entitled to relief.36 And after Judge Stephens found
that Charless offer of proof was deficient, Charles made no
effort to correct that deficiency when he filed his motion to
reconsider. In the absence of any proof to the contrary, the
district court was obliged to presume that the regulations were
valid.37
Our conclusion is consistent with other decisions
holding that individuals are not free to break laws simply
because they believe their conduct should be legal. For instance,
a person cannot defend against a charge of driving without a
license by asserting that the government wrongly denied the
license; the defendant must challenge the denial of the license
in appropriate civil or administrative proceedings.38 Similarly,
a person cannot defend against a charge of violating a
restraining order by asserting that there were insufficient
grounds for the court to issue the order.39 And a person cannot
defend against a charge of illegal hunting by asserting that
state or federal regulators made the wrong judgments when they
set harvest limits for game.
Managing game for subsistence and other competing uses
is a complex task that requires considerable expertise. The
district court correctly recognized that it had no authority to
substitute its judgment for that of the agencies involved with
respect to the wisdom or efficacy of these regulations.40
Conclusion
We therefore AFFIRM the district court judgment.
MANNHEIMER, Judge, concurring.
I write separately to emphasize a key aspect of our
analysis of this case: our interpretation of the Alaska Supreme
Courts decision in Totemoff v. State, 905 P.2d 954 (Alaska 1995).
In the final portion of its opinion in Totemoff, 905
P.2d at 969-973, the supreme court addressed the question of
whether a defendant who is charged with violating a hunting
regulation can defend against the charge by attacking the
validity of the regulation. The supreme court concluded that a
defendant can properly assert that the regulation is procedurally
invalid i.e., that the proceedings leading up to the enactment
of the regulation were irregular in one or more respects. 905
P.2d at 969, 972-73. But at the same time, the supreme court
reaffirmed its earlier decision in State v. Eluska, 724 P.2d 514,
516 (Alaska 1986), that a defendant is not entitled to defend
against a charge of illegal hunting by asserting that the
unlawful act of hunting was done for subsistence purposes. 905
P.2d at 969-971.
See also AS 16.05.259, which states: In a prosecution
for the taking of fish or game in violation of a statute or
regulation, it is not a defense that the taking was done for
subsistence uses. In Totemoff, the supreme court interpreted
this statute as codifying the courts decision in Eluska that
unauthorized hunting does not become lawful because it is
subsistence hunting. 905 P.2d at 970.
In Totemoff, the defendant argued that the regulation
he was charged with violating (a regulation that prohibited the
hunting of deer with the aid of a spotlight) was procedurally
invalid because the Board of Game held no separate hearing to
determine whether the prohibition on the use of spotlights should
apply to subsistence hunting. 905 P.2d at 971-72. The supreme
court rejected the contention that the Board was required to hold
a separate hearing on subsistence issues, and the court then
noted that Totemoff had offered no evidence that the Board of
Game failed to consider subsistence uses during the
administrative proceedings leading up to the adoption of the
regulation. 905 P.2d at 972-73. Given the lack of evidence on
this point, and given the presumption of regularity, the supreme
court held that Totemoff had failed to establish even a prima
facie case that the regulation was procedurally invalid. Ibid.
Returning to the facts of Charless case, Charles
offered no evidence that the Alaska Board of Game or the Federal
Subsistence Board failed to consider subsistence uses when they
set the limits on deer hunting on Prince of Wales Island.
Rather, as Judge Bolgers lead opinion points out, Charles
apparently concedes the opposite. In his district court
pleadings, Charles declared that [even though] the pressure put
on game by non-subsistence [hunters] has ... been recognized by
the Federal Subsistence Board, [the Board] has not ... adequately
... preserve[d] Mr. Charles subsistence hunting needs.
In other words, Charles did not assert that the Board
of Games adoption of the deer-hunting regulation was procedurally
invalid, or that the regulation lacked any reasonable relation to
the Boards areas of regulatory authority defined in AS 16.05.255
270. Instead, Charles argued that the Board reached the wrong
conclusion when it weighed the needs of subsistence hunters
against the need to husband the deer population. Charles wanted
the district court to hold a hearing, not for the purpose of
showing that there was any legal irregularity in the Boards
enactment of the regulation, but rather for the purpose of second-
guessing the Boards decision on issues of game management.
Totemoff and Eluska hold that this proposed defense is not
allowed.
_______________________________
1 5 Alaska Administrative Code (AAC) 92.140(a) provides:
No person may possess, transport, give,
receive, or barter game or parts of game that the
person knows or should know were taken in
violation of AS 16 or a regulation adopted under
AS 16.
2 5 AAC 92.150(b) provides:
If the taking of a big game animal, except
sheep, is restricted to one sex, a person may not
possess or transport the carcass of an animal
unless sufficient portions of the external sex
organs remain attached to indicate conclusively
the sex of the animal, except that antlers are
considered proof of sex for a deer if the antlers
are naturally attached to an entire carcass, with
or without the viscera; however, this section does
not apply to the carcass of a big game animal that
has been cut and placed in storage or otherwise
prepared for consumption upon arrival at the
location where it is to be consumed.
3 5 AAC 92.010(f) provides in pertinent part:
[A] person may not hunt deer, except in a
permit hunt, unless the person has in possession a
deer harvest ticket[.]
4 5 AAC 85.030(a)(2) provides that, between August 1 and
December 31, the bag limit for Prince of Wales Island (Southeast
Region Game Management Unit 2) is four bucks. See 5 AAC
92.450(2) (describing Game Management Unit 2). Federal
regulations provide that only bucks may be taken in Unit 2
between July 24 and October 15. 36 C.F.R. 242.26(n)(2); 50
C.F.R. 100.26(n)(2).
5 See AS 16.05.920(a) (a person may not take any game
unless permitted by statute or regulation).
6 Congress intended to provide the opportunity for rural
residents engaged in a subsistence way of life to do so. 16
U.S.C. 3112(1). Subsistence harvest of fish and wildlife on
public lands must be accorded priority over the taking of fish
and wildlife for other purposes. 16 U.S.C. 3114. The
Secretaries of Interior and Agriculture are required to
promulgate regulations necessary to implement this priority. 16
U.S.C. 3124.
7 905 P.2d 954 (Alaska 1995).
8 See AS 16.05.930(b) (This chapter does not prohibit a
person from taking fish or game during the closed season, in case
of dire emergency, as defined by regulation adopted by the
appropriate board.); 5 AAC 92.990(a)(13) (defining dire emergency
to mean a situation in which the person is (A) in a remote area;
(B) involuntarily experiencing an absence of food required to
sustain life; (C) facing a high risk of death or serious and
permanent health problems if wild game food is not immediately
taken; and (D) cannot expect to obtain other food sources in
time).
9 See Petersen v. Mutual Life Ins. Co., 803 P.2d 406, 410
(Alaska 1990).
10 See Vigne v. State, 987 P.2d 204, 210 (Alaska app.
1999).
11 Alaska R. Crim. P. 42(b)(1) & (2).
12 Alaska R. Crim. P. 42(e)(3).
13 938 F.2d 942 (9th Cir. 1991).
14 Id. at 945.
15 Id. at 945-46.
16 Id. at 945.
17 Id. at 946.
18 Id. at 948.
19 Totemoff, 905 P.2d at 963 (noting that Alaska
courts are not bound by decisions of federal courts other than
the United States Supreme Court on questions of federal law)
(citing In re F.P., 843 P.2d 1214, 1215 n.1 (Alaska 1992)).
20 See Alexander, 938 F.2d at 948.
21 Id. at 946-47.
22 Id.
23 724 P.2d 514 (Alaska 1986).
24 Id. at 514.
25 Id.
26 Id. at 516.
27 Id.
28 905 P.2d at 960-61.
29 State, Dept of Commerce v. Progressive Cas. Ins.
Co., 165 P.3d 624, 632 (Alaska 2007).
30 905 P.2d at 957 (citing 5 AAC 92.080(7)).
31 Id. at 960 (citing 36 C.F.R. 242.23(b)(1)(vii)
(1990)).
32 AS 16.05.920(a) (prohibiting the taking of game
absent a regulation authorizing the taking); 5 AAC 85.030(a)(1)
(setting bag limit in Game Unit 2).
33 36 C.F.R. 242.26(n)(2); 50 C.F.R. 100.26(n)(2);
see Subsistence Taking of Fish and Wildlife Regulations, 71 Fed.
Reg. 37642-01, 37662 (June 30, 2006).
34 Totemoff, 905 P.2d at 969.
35 State v. Morry, 836 P.2d 358, 362-64 & 362 n.3
(Alaska 1992); see also Alexander, 938 F.2d at 947 (rejecting the
claim that a state regulation establishing catch limits for
herring roe interfered with ANILCA because the defendants had
presented no evidence of what was or was not considered by the
Board of Fisheries when it adopted the catch limits, and had
provided no record of the Boards proceedings).
36 See Marshall v. State, 198 P.3d 567, 572-73
(Alaska App. 2008) (explaining that an evidentiary hearing is not
required unless the moving party files affidavits or other
evidence showing that he may be entitled to relief).
37 See State v. First Natl Bank of Anchorage, 660
P.2d 406, 425 (Alaska 1982) (AS 44.62.100(a) establishes a
rebuttable presumption that the procedural requirements for the
promulgation of administrative regulations have been satisfied.).
38 See Tenison v. State, 38 P.3d 535, 538 (Alaska
App. 2001).
39 See Jacko v. State, 981 P.2d 1075, 1077 (Alaska
App. 1999).
40 See Eagle v. State, Dept of Revenue, 153 P.3d 976,
978 (Alaska 2007); Meier v. State, Bd. of Fisheries, 739 P.2d
172, 174 (Alaska 1987).
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