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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
STATE OF ALASKA,
Court of Appeals No. A-13867
Appellant, Trial Court No. 1JU-20-00296 CR
v.
O P I N I O N
ALISHA L. ROSENBRUCH-DECKER,
Appellee.
STATE OF ALASKA,
Court of Appeals No. A-13868
Appellant, Trial Court No. 1JU-20-00295 CR
v.
ZACHARIAH BRENT DECKER,
Appellee. No. 2801 - March 28, 2025
Appeal from the District Court, First Judicial District, Juneau,
Kirsten Swanson, Judge.
Appearances: Ronald Dupuis, Assistant Attorney General,
Office of Special Prosecutions, Anchorage, and Treg R.
Taylor, Attorney General, Juneau, for the Appellant. Susan
Orlansky, Reeves Amodio LLC, Anchorage, for the Appellees.
Before: Allard, Chief Judge, and Wollenberg and Terrell,
Judges.
----------------------- Page 2-----------------------
Judge TERRELL.
Big game guides Zachariah Brent Decker and Alisha L. Rosenbruch-
Decker were leading a mountain goat hunt in southeast Alaska. After their client fired
a gunshot wounding a goat, Decker conveyed the animal's location to Rosenbruch-
Decker using a radio. Rosenbruch-Decker then helped the client locate the goat, and the
client fired a second shot that killed the animal. Decker and Rosenbruch-Decker were
charged with violating a fish and game regulation, 5 Alaska Administrative Code
(AAC) 92.080(7)(I), that prohibits "taking" a game animal with the aid of a wireless
communication device.1 They were also charged with two additional offenses that
2
derived from the violation of 5 AAC 92.080(7)(I).
Decker and Rosenbruch-Decker filed a motion to dismiss their charges on
three grounds: (1) that they had not used a radio to "take" the goat, as that term is
defined in AS 16.05.940(35), because the goat had already been "taken" when it was
initially shot and mortally wounded; (2) that the State's contrary interpretation of "take"
was unconstitutionally vague and overbroad; and (3) that prosecuting them violated
their substantive due process rights because they had been placed in an impossible
situation if they were not allowed to use radios to locate the goat. The district court
agreed and dismissed Decker and Rosenbruch-Decker's cases.
For the reasons explained in this opinion, we reverse the decision of the
district court.
1 5 AAC 92.080(7)(I).
2 AS 08.54.720(a)(8)(A) and 5 AAC 92.140(a), respectively.
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----------------------- Page 3-----------------------
Background facts and proceedings
In November 2018, Zachariah Brent Decker and Alisha L. Rosenbruch-
3
Decker guided a nonresident client on a hunt in the Endicott Arm in southeast Alaska.
The group traveled to the area on a large vessel, anchored the vessel, and then used a
skiff to scan the surrounding hillsides. After spotting a goat from the water, the guides
and their client went ashore and hiked up the hillside to get a better shot at the goat.
The client fired a shot from his rifle at the goat, which struck the goat. At
the time, the guides were unsure where exactly the shot had hit the goat, even though
they knew it had been hit. (It was later determined that this shot struck the goat in the
head.) When it was initially hit by the bullet, the goat ran away, leaving it out of sight
from the hunters' position.
When the goat moved into the brush, Decker got into the skiff and
distanced himself from the land to ascertain the goat's location. Once he spotted it,
Decker used a radio to convey the goat's location to Rosenbruch-Decker. Based on
these directions, Rosenbruch-Decker and the client were then able to find the goat. The
client shot the goat again, killing it. Other nearby hunters overheard the radio
communications and reported the incident to wildlife troopers. The client and
Rosenbruch-Decker skinned the goat and salvaged the meat before returning to the boat.
The State charged Decker and Rosenbruch-Decker with violating a
regulation, 5 AAC 92.080(7)(I), that prohibits "taking" a game animal with the aid of a
wireless communication device.4 Based on the violation of this regulation, they were
also charged with the derivative offenses of (1) being a licensed game guide and
"commit[ing] or aid[ing] in the commission of a violation of . . . a state or federal
3 For purposes of this appeal, the key facts are not disputed.
4 5 AAC 92.080(7)(I). This offense is a class A misdemeanor. AS 16.05.925(a).
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----------------------- Page 4-----------------------
5
wildlife or game statute or regulation," and (2) possessing or transporting "game or
parts of game that the person knows or should know were taken in violation of . . .
6
AS 16 or a regulation adopted under AS 16."
Decker and Rosenbruch-Decker moved to dismiss these charges. First,
they argued that they did not "take" the goat with the aid of a radio. Rather, they argued
that "the mountain goat was 'taken' when the client [first shot and] fatally wounded the
mountain goat," and that they only used the radio to locate the goat after it was already
"taken." Second, they argued that "the State's interpretation of 'take'" was
unconstitutionally vague and overbroad. Third, they argued that their due process rights
were violated because "after the client shot and terminally wounded the mountain goat,
the[y] were faced with competing legal obligations that all carried criminal sanctions."
The State opposed the motion to dismiss. The State disputed that the
"taking" was complete when the initial shot struck the goat. Rather, the State noted that
the statutory definition of "take" includes an array of human conduct directed at
animals, including "pursuing," "hunting," and "killing" an animal. The State also
argued that because Decker and Rosenbruch-Decker could have located the goat
without using radios, they were not placed in an unfair dilemma warranting dismissal
of their charges.
The district court found that the first shot mortally wounded the goat, and
that the "taking" of the goat was therefore complete when the first bullet struck it. The
court also agreed that the State's prosecution violated Decker and Rosenbruch-Decker's
due process rights, and found that the State's interpretation of "take" failed to give
hunters adequate notice and afforded undue discretion to prosecuting authorities.
Accordingly, the court dismissed the charges, leading to the present State's appeal.
5 AS 08.54.720(a)(8)(A). This offense is an unclassified misdemeanor punishable by
a maximum of one year in prison or a fine of $30,000. AS 08.54.720(c).
6 5 AAC 92.140(a). This offense is a class A misdemeanor. AS 16.05.925(a).
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----------------------- Page 5-----------------------
Why we conclude that the definition of "taking " includes ongoing conduct
until the point when an animal is captured or killed
Under AS 16.05.940(35), "take" is defined as "taking, pursuing, hunting,
fishing, trapping, or in any manner disturbing, capturing, or killing, or attempting to
take, pursue, hunt, fish, trap, or in any manner capture or kill fish or game."7 The term
"take" is central to Alaska's fish and game laws. For example, under AS 16.05.920, the
provision that regulates the conduct of hunters and fishers and forms the basis for
wildlife management, "a person may not take, possess, transport, sell, offer to sell,
8
purchase, or offer to purchase . . . game" unless permitted by statute or regulation.
Decker and Rosenbruch-Decker were charged with violating a fish and
game regulation that specifies which means and methods hunters may use (and may not
use) when "taking" game. The parties to this appeal argue for different interpretations
of what it means to "take" an animal, reprising the arguments made in the district court.
"When 'interpreting a statute, we consider its language, its purpose, and
its legislative history, in an attempt to give effect to the legislature's intent, with due
regard for the meaning the statutory language conveys to others.'"9 We begin with the
10
text and its plain meaning and use a "sliding-scale approach" to interpret the language.
7 AS 16.05.940(35). This provision remains unchanged from its enactment in 1959,
shortly after statehood. SLA 1959, ch. 94, § 2(h).
8 AS 16.05.920(a) (emphasis added); Charles v. State, 232 P.3d 739, 741 n.5 (Alaska
App. 2010) (recognizing that "a person may not take any game unless permitted by statute
or regulation"). Many regulations also use the variant, "taking." This can be seen in the
section headings to key hunting regulations: 5 AAC 92.075 ("Lawful methods of taking
game"); 5 AAC 92.080 ("Unlawful methods of taking game; exceptions"); 5 AAC 92.090
("Unlawful methods of taking fur animals"); 5 AAC 92.095 ("Unlawful methods of taking
furbearers; exceptions").
9 State v. Planned Parenthood of the Great Nw., 436 P.3d 984, 992 (Alaska 2019)
(quoting Alyeska Pipeline Serv. Co. v. DeShong , 77 P.3d 1227, 1234 (Alaska 2003)
(internal quotation omitted)).
10 Id. (quoting Ward v. Dep't of Pub. Safety, 288 P.3d 94, 98 (Alaska 2012)).
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----------------------- Page 6-----------------------
Under that approach, "the plainer the statutory language is, the more convincing the
11
evidence of contrary legislative purpose or intent must be."
Our task in interpreting the statutory definition of "take" in
AS 16.05.940(35) is complicated by the absence of legislative history surrounding the
adoption of the statute. The statutory definition was enacted in 1959, in the first
legislative session after Alaska attained statehood.12 Unfortunately, "[n]o [Alaska
legislative] committee minutes or bill files survive from before 1965, so the only source
of legislative history is the journals."13 Our research confirms the parties' assertions
that the legislative journals provide no insight as to the meaning of the statute.
Accordingly, we construe the provision by considering the plain language
of the statute, by applying basic canons of statutory construction, and by looking at how
the term has been interpreted by the Alaska Board of Game.
But before interpreting the statutory definition of "take" in
AS 16.05.940(35), we will provide a brief overview of the meaning of "take" under the
common law. At common law, the term "take" focused on when the animal in question
was reduced to the hunter's possession or control, for purposes of determining who had
a property interest in the animal.14 The common law meaning of "take" provides a
useful contrast to Alaska's more expansive statutory definition of "take." As we will
explain, the statutory definition of "take" is broader than the common law, covering a
wider window of human conduct, from when a person begins or attempts to hunt, fish,
or pursue an animal, through when the animal is actually captured or killed.
11 State v. Fyfe, 370 P.3d 1092, 1095 (Alaska 2016) (quoting Adamson v. Municipality
of Anchorage, 333 P.3d 5, 11 (Alaska 2014)).
12 SLA 1959, ch. 94, § 2(h).
13 Susan Falk, Introduction to Researching Alaska Legislative History Materials , 28
Alaska L. Rev. 279, 283 (2011).
14 State v. Schmid, 859 N.W.2d 816, 821 (Minn. 2015) (cited cases omitted).
- 6 - 2801
----------------------- Page 7-----------------------
1. The common law meaning of "take"
Long before the term was defined in Alaska statute, "take" had an
established meaning at common law in the context of hunting wild animals -
15
specifically, "to reduce those animals, by killing or capturing, to human control."
However, this definition of "take" had a fairly narrow meaning since it was a function
of property law doctrine. At common law, a "take" held legal significance because it
was used to identify which hunter had a vested property right in a wild animal. 16 Given
this property-focused application, the hallmark of a "take" is the result of a successful
hunt: the capture or killing of an animal.
In early, pre-Magna Carta England, wild animals were viewed as the
property of the sovereign, but over time, the regulation of the taking of game became
subject to the popular sovereignty.17 As the common law carried over to America, wild
animals were considered the property of sovereign state governments, held in trust for
the people. 18 "Taking" an animal involved the process by which a person gained
15 Babbitt v. Sweet Home Chapter of Cmtys. for a Great Or., 515 U.S. 687, 717-18
(1995) (Scalia, J., dissenting, joined by Rehnquist, C.J., and Thomas, J.) (citing historical
sources discussing traditional usage of the term "take" as to wild animals). The Alaska
Supreme Court made this point in Ellingson v. Lloyd, 342 P.3d 825 (Alaska 2014), where
the court cited an 1850 New York case for the proposition that persons can acquire a
property interest in a wild animal ("animals ferae naturae ") by bringing the animal under
the person's "control and dominion." Id. at 831 n.31 (citing Earl v. Van Alstine, 8 Barb.
630, 631 (N.Y. Gen. Term. 1850)).
16 See Pierson v. Post, 3 Cai. R. 175, 177 (N.Y. 1805) (describing long-standing
principles of law as providing that "pursuit alone vests no property or right in the huntsman;
and that even pursuit, accompanied with wounding, is equally ineffectual for that purpose,
unless the animal be actually taken"); Geer v. Connecticut, 161 U.S. 519, 523 (1896)
("[A]ll the animals which can be taken upon the earth, in the sea, or in the air, - that is to
say, wild animals, - belong to those who take them, because that which belongs to nobody
is acquired by the natural law by the person who first possesses it.").
17 See McDowell v. State, 785 P.2d 1, 11-12 (Alaska 1989).
18 See id. The idea that sovereign governments "own" wild animals is a legal fiction,
and it is more accurate to say that these governments have the right to regulate the use and
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----------------------- Page 8-----------------------
ownership or a property right in the animal, and involved compliance with applicable
19
laws governing acquisition of the animal (i.e., hunting, fishing, or trapping laws).
Under the common law meaning of the term, an animal is not "taken" until
the animal is captured or killed; pursuing an animal, or even wounding an animal, is
insufficient to constitute a taking. In Pierson v. Post, a seminal decision in property
law, Post had been pursuing a fox on a hunting expedition with his hounds.20 But before
he could capture the animal, Pierson came upon the fox, killed it, and carried away the
carcass.21 Post sued Pierson for the fox.22 The New York Supreme Court rejected Post's
claim, holding that neither pursuit alone, nor even pursuit accompanied by wounding
an animal, amounts to a taking (i.e., vests the hunter with a property right in the
animal).23 Rather, a "taking" does not occur until the animal has been reduced to the
24
hunter's possession or control.
taking of such animals and to establish the legal conditions for individuals to take fish and
game. See Pullen v. Ulmer, 923 P.2d 54, 59 (Alaska 1996).
19 See, e.g., Bailey v. Smith, 581 S.W.3d 374, 391-92 (Tex. App. 2019) ("Under the
public trust doctrine an animal must be 'legally removed' from the wild before property
rights can arise in it.").
20 Pierson, 3 Cai. R. at 175-76.
21 Id.
22 Id.
23 Id. at 177-79 (citing, inter alia, Justinian's Institutes, a sixth-century codification of
Roman law; Fleta, a treatise on English common law from the late thirteenth century; and
Bracton, an English legal commentator from the 1200s).
24 Courts outside of the hunting context have applied this same common law
interpretation of what it means to "take" an animal. In the context of cattle theft charges,
the Texas Court of Criminal Appeals in Rosenbush v. State, 122 S.W.2d 1071, 1072 (Tex.
Crim. App. 1938), relied on an earlier decision, Minter v. State , 9 S.W. 561 (Tex. App.
1888), where the court stated that "[w]e have found no authority which holds that mere
wounding of an animal upon its range, and the pursuit of it without capturing it, without
bringing it in some way under the control and dominion of the party, is sufficient to
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----------------------- Page 9-----------------------
Due to its emphasis on when property rights vest, the common law
meaning of a "taking" references a singular point in time - the moment that the hunter
takes possession or control of the animal. As we are about to explain, Alaska's statutory
definition of "take" is written more broadly than its common law meaning. Rather than
referencing a specific moment in time, Alaska's definition of "take" includes human
conduct leading up to, and including, the act of killing or capturing an animal.
2. The plain language of the statutory definition of "take"
supports the view that taking an animal can include ongoing
conduct and is not necessarily a one-time event
In 1925, the United States Congress established the Alaska Game
Commission and promulgated a game code for the Territory of Alaska.25 This code
created "open" and "closed" seasons for when "birds or animals may be lawfully
taken," and defined "take" to mean:
Taking, pursuing, disturbing, hunting, capturing, trapping,
or killing game animals, land fur-bearing animals, game or
nongame birds, attempting to take, pursue, disturb, hunt,
capture, trap, or kill such animals or birds, or setting or using
a net, trap, or other device for taking them, or collecting the
nests or eggs of such birds, unless the context otherwise
requires.[26]
constitute a taking." Likewise, in the robbery context, it has been stated that "[t]aking . . .
is a common law term of art derived from the law of robbery and larceny. It refers to the
act of 'securing dominion' over something." United States v. Figueroa-Cartagena, 612
F.3d 69, 78 (1st Cir. 2010) (cited and quoted sources omitted).
25 Alaska Game Law, 43 Stat. 739, ch. 75 (1925).
26 Id. at § 2.
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This definition of "take" was included in the 1949 compiled laws of the Territory of
Alaska.27 There does not appear to be any caselaw from territorial Alaska interpreting
this definition.
In 1959, shortly after Alaska attained statehood, the legislature created a
fish and game code.28 Under this code, "take" was defined in AS 16.05.940 as "taking,
pursuing, hunting, fishing, trapping, or in any manner disturbing, capturing, or killing,
or attempting to take, pursue, hunt, fish, trap, or in any manner capture or kill fish or
game."29 This provision remains unchanged since then.
We begin our analysis with the plain meaning of the statute. We note that
the grammar and word choice used by the legislature suggests that its definition of
"take" involves an ongoing process.30 The verbs used in the statutory definition -
31
"taking, pursuing, hunting, fishing, trapping, disturbing, capturing, and killing" - are
gerunds.32 Courts have recognized that "the gerund or verbal noun form is used to
denote a present or ongoing activity."33 This supports the view that "taking" an animal
27 ACLA § 39-6-1 (1949).
28 SLA 1959, ch. 94.
29 Id. at § 2(h).
30 Courts "may assume that the legislature knew and understood the rules of grammar"
and are "justified in relying on such rules in the interpretation of [Alaska] laws." Studley
v. Alaska Pub. Offs. Comm'n, 389 P.3d 18, 25 n.36 (Alaska 2017) (alteration in original)
(citing Emp't Sec. Comm'n v. Wilson, 461 P.2d 425, 428 (Alaska 1969)).
31 AS 16.05.940(35) (emphasis added).
32 State v. Schmid, 859 N.W.2d 816, 821 (Minn. 2015) (quoting Rodney Huddleston
& Geoffrey K. Pullum, The Cambridge Grammar of the English Language 81 (2002) ("A
gerund is traditionally understood as a word derived from a verb base which functions as
or like a noun[.]") (emphasis in original)).
33 Midland Ins. Co. v. Home Indem. Co. , 619 S.W.2d 387, 389 (Tenn. App. 1981);
accord State v. Brady, 506 P.3d 1180, 1184 (Or. App. 2022).
- 10 - 2801
----------------------- Page 11-----------------------
includes the ongoing course of conduct that precipitates, and includes, the act of
capturing or killing the animal.
In State v. Kerr, the Idaho Court of Appeals interpreted Idaho's definition
of "take" and reached a similar conclusion.34 Idaho Code § 36-202(i) defines "take" as
"hunt, pursue, catch, capture, shoot, fish, seine, trap, kill or possess or any attempt to
do so."35 The Idaho definition, like Alaska law, lists a series of actions that meet the
definition of "take," from "hunt" and "pursue" more broadly, to "kill" more specifically.
In Kerr, the defendant first shot and mortally wounded an elk, and then
trespassed on private land to retrieve the injured animal.36 During the pendency of the
defendant's trespass case, a question arose as to whether state wildlife officials could
seize the elk pursuant to a statute that allowed seizure of game that was "taken
unlawfully."37 The trial court ruled that Kerr committed an unlawful taking because he
38
was in "pursuit" of the elk when he trespassed onto the land to retrieve it.
Kerr argued on appeal that the "taking" of the elk was complete when he
first shot it, before it entered the private property, and thus that he did not illegally
"take" game by trespassing to retrieve the elk.39 The Idaho Court of Appeals disagreed
with Kerr's argument that the "taking" was complete when he shot the elk, stating that:
The plain meaning of I.C. § 36-202(i) does not support
Kerr's contention that only one taking can occur, as "take"
is defined to encompass actions such as pursuing and
34 State v. Kerr, 408 P.3d 94, 97 (Idaho App. 2017).
35 Id. at 96.
36 Id. at 95.
37 Id. at 95, 97 (citing Idaho Code § 36-1304(b) (providing for state confiscation of
wildlife taken unlawfully)).
38 Id. at 95-96.
39 Id. at 96.
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----------------------- Page 12-----------------------
hunting an animal. The statute unambiguously provides
multiple methods by which an animal may be taken, with
some of these methods being prerequisite steps to fulfilling
other methods; i.e., hunting and then killing. Accordingly,
the magistrate's finding that Kerr took the elk more than
once, by shooting it and then trespassing to take physical
possession of it, was correct.[40]
Alaska's statutory definition of "take" is similar to Idaho's statutory
definition. We agree with the Idaho Court of Appeals that as a matter of plain meaning,
multiple different actions can fit within the umbrella definition of "take," and that a
"take" is not necessarily a specific moment in time. Rather, an array of human conduct
leading up to, and including, the act of killing or capturing an animal falls within the
plain meaning of "take."
3. The Board of Game's interpretation of the law supports the
State's interpretation of the temporal reach of the term "take"
Thus far, our statutory interpretation has focused on examining the
meaning of "take" in light of the plain language of the statute. Having reviewed the
plain language, it appears that "taking" an animal includes an ongoing course of conduct
(e.g., "pursuing" and "hunting") that precipitates and includes the act of capturing or
killing the animal. This interpretation is consistent with how the entity charged with
oversight and implementation of Alaska's game laws, the Alaska Board of Game (the
41
Board), has interpreted this provision.
40 Id. at 97.
41 See Grimm v. Wagoner, 77 P.3d 423, 434 & n.40 (Alaska 2003) (quoting 2B
Norman J. Singer, Sutherland on Statutory Construction § 49.03 (6th ed. 2000))
("[P]ractical interpretation of a statute by the . . . officers charged with its administration
and enforcement . . . constitutes an invaluable aid in determining the meaning of a doubtful
statute.").
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In 2004, the Board promulgated a regulation, 5 AAC 92.220(i), which
mandated that "[a] person who has wounded game shall make every reasonable effort
to retrieve and salvage that game."42 In March 2016, the Board considered a proposal
to repeal this provision. A wildlife trooper testifying in support of the repeal noted that
the regulation had led to uncertainty as to whether regulations setting out means and
methods restrictions continue to apply after an animal had been wounded.43 The trooper
explained that hunters could use otherwise-forbidden means and methods, such as
same-day airborne hunting or hunting with the aid of wireless communications, after
wounding an animal under the theory that such efforts were "reasonable" to retrieve
44
and salvage the wounded animal.
Bruce Dale, Director of the Department of Fish and Game's Wildlife
Conservation Unit, agreed with the testifying trooper that the regulation's language was
problematic.45 He also worried that hunters could use the "I'm sure I hit it" excuse in
combination with this expansive interpretation of 5 AAC 92.220(i) to circumvent
otherwise applicable hunting laws, to the detriment of the State's ability to prevent over-
42 Alaska Reg. 170, pt. 1, 355 (July 1, 2004) (emphasis added). A separate statutory
provision, AS 16.30.010(a), applies when big game animals or certain species of wild fowl
are killed (not merely wounded), and makes it a class A misdemeanor "to fail intentionally,
knowingly, recklessly, or with criminal negligence to salvage for human consumption the
edible meat of the animal or fowl." See also AS 16.30.030(1) (defining "big game animal"
as "moose, caribou, mountain sheep, mountain goat, feral reindeer, deer, elk, bison, walrus,
or musk ox").
43 Meeting of Alaska Board of Game, March 23, 2016, at 3:41:34 (remarks of Trooper
Paul Fussey), https://www.adfg.alaska.gov/index.cfm?adfg=gameboard.meetinginfo&
date=03-18-2016&meeting=fairbanks, (last visited on March 24, 2025). To listen to
audio, click on "Meeting Audio" at the bottom of the page.
44 Id.
45 Id. at 4:03:27.
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hunting and to responsibly manage Alaska's wildlife resources.46 The Board ultimately
agreed, and voted 5-2 to repeal 5 AAC 92.220(i).47 Undergirding the Board's decision
is the basic premise that means and methods restrictions continue to apply even after
an animal is wounded, up until an animal is captured or killed. This understanding
supports the plain language of AS 16.05.940(35) - that "take" is defined as an ongoing
process that culminates when an animal is captured or killed.
Further, the overwhelming majority of means and methods restrictions,
including the regulation relating to wireless communications that Decker and
Rosenbruch-Decker are charged with violating, use the terms "take" or "taking" as
present-tense mandates that apply until a hunt is complete.48 But these same regulations
set out a handful of exceptions that allow otherwise prohibited means and methods to
be employed earlier in the process, after an animal is wounded.49 These regulations
reflect a recognition by the Board that, absent an exception, means and methods
restrictions generally continue to apply until an animal is captured or killed.
Significantly, many of these exceptions are of long-standing origin, showing that the
50
Board has long had this understanding of the law.
46 Id.
47 Id. at 4:09:05.
48 See, e.g., 5 AAC 92.080 ("The following methods of taking game are prohibited:").
49 See 5 AAC 92.080(7)(C)(ii) - (iii) (allowing use of artificial lights by a tracking dog
handler trying to track and dispatch a wounded big game animal, or when trying to track
and dispatch a wounded game animal without the use of motorized vehicles);
5 AAC 92.085(5)(A) (allowing a tracking dog to be used to track wounded big game);
5 AAC 92.095(a)(8) (allowing trappers to shoot animals caught in traps or snares); 5 AAC
92.100(a)(3) (allowing boats to be used to retrieve "a dead or injured bird").
50 See, e.g., 5 AAC 81.115(3) (adopted by Alaska Reg. 58, 5-120 (July 1976))
(allowing boats to be used to retrieve dead or injured birds); 5 AAC 84.060(3) (adopted by
Alaska Reg. 94, 5-146 (July 1985)) (allowing trappers to shoot beavers caught in snares);
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----------------------- Page 15-----------------------
The legislature, or the Board of Game in the exercise of its expertise
regarding game management, may conclude that it is appropriate to permit hunters to
use certain weapons, technology, or hunting techniques to locate and kill an animal after
it has been wounded, but before it is dead.51 There may be good reasons for doing so,
such as to speed up the process of recovering an animal or to prevent animals from
being subject to prolonged suffering. The legislature or the Board of Game may opt to
create specialized provisions that limit the meaning of "take" to some subset of the full
meaning encompassed in the statutory definition.52 But the default rule is that means
and methods restrictions for taking wildlife continue to apply until the animal is either
captured or killed, in accordance with the type of hunting that the hunter is engaged in.
For the reasons stated above, we conclude that the district court erred in
holding that the taking of the goat was complete when the hunter first shot and wounded
it and that the means and methods restrictions set out in 5 AAC 92.080-.085 ceased to
apply at that point.
Alaska Game Regul. 303.02(b)(1) (adopted by Alaska Reg. 24, 5-422 (July 1967))
(allowing the use of dogs in certain bear hunts).
51 See AS 16.05.255(a)(3) (authorizing the Board of Game to enact regulations for
"establishing the means and methods employed in the pursuit, capture, taking, and transport
of game").
52 A 1979 Attorney General Opinion noted that:
The term "take" can be given different emphasis depending on the context of
the law. For example, the term "take" when used in a bag limit definition (cf.
5 AAC 81.310 - a hunter must "take" in accordance with bag limits) is likely
to be construed by a court to mean actually killing, not merely hunting or
pursuing. The need for this construction is obvious when one considers that
otherwise persons would be guilty of "taking" an entire flock of birds merely
by aiming his gun in their direction.
1979 Inf. Op. Att'y Gen. No. A-66-253-79 at 3 (Alaska, Mar. 5, 1979), 1979 WL 22768,
at *2 (emphasis in original) (citing United States v. Chew, 540 F.2d 759 (4th Cir. 1976)).
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Why we conclude that the statutory definition of "take" provides fair
notice to hunters
Decker and Rosenbruch-Decker alternatively argue that, if this Court
interprets "take" to include the time period between when an animal is mortally
wounded and when it dies, AS 16.05.940(35) fails to provide adequate notice of the
broad meaning of "take." However, as we noted in De Nardo v. State :
[T]he fact that people can, in good faith, litigate the meaning
of a statute does not necessarily (or even usually) mean that
the statute is so indefinite as to be unconstitutional. The
question is whether the statute's meaning is unresolvably
confused or ambiguous after it has been subjected to legal
analysis. If study of the statute's wording, examination of its
legislative history, and reference to other relevant statutes
and case law makes the statute's meaning clear, then the
statute is constitutional.[53]
Further, the principle that "criminal statutes are generally construed strictly . . . 'does
54
not require that statutes be given the narrowest meaning allowed by [their] language.'"
Rather, they "should still be given 'a reasonable or common sense construction,
consonant with the objectives of the legislature.'"55 In light of a careful examination of
the statute's text and the common law meaning of "taking" an animal, we hold that the
statute is not vague or ambiguous and provides sufficient notice to hunters.
53 De Nardo v. State, 819 P.2d 903, 908 (Alaska App. 1991).
54 Grant v. State, 379 P.3d 993, 995-96 (Alaska App. 2016) (quoting State v. Jones,
750 P.2d 828, 831 (Alaska App. 1988)).
55 Id. at 996 (quoting Belarde v. Municipality of Anchorage , 634 P.2d 567, 568 (Alaska
App. 1981)).
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Decker and Rosenbruch-Decker also claim that the statutory definition of
56
"take" is so vaguely written that it leaves room for arbitrary enforcement discretion.
The district court found that the law gave undue discretion to the State in prosecuting
hunters under the law, but provided no analysis or support for this assertion.
Alaska 's appellate courts have previously stated that hypothetical
concerns are insufficient to invalidate a statute on this prong of a vagueness analysis;
there must be "actual evidence of a history of arbitrary or capricious enforcement . . .
or the language of the statute must be so conflicting and confused that arbitrary
enforcement is inevitable."57 The appellees do not point to any concrete examples of
over-enforcement stemming from the statutory definition, and on appeal simply reassert
that the definition of "take" "is so vague and standardless that arbitrary enforcement is
inevitable." We disagree. The appellees' inability to identify concrete examples of
arbitrary enforcement of the term "take" in a statute that is sixty-five years old is fatal
to their arbitrary enforcement claim.
For these reasons, we reject the claim that the definition of "take" in
AS 16.05.940(35) fails to provide adequate notice and is unconstitutionally vague. The
conduct at issue here - firing a second shot to kill a wounded animal - fits squarely
within the meaning of "taking" an animal.
56 Summers v. Municipality of Anchorage , 589 P.2d 863, 868 (Alaska 1979) (noting
the potential for arbitrary enforcement discretion as a basis for finding a statute
unconstitutionally vague).
57 Leu v. State , 251 P.3d 363, 369 (Alaska App. 2011) (citing cases).
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Why we conclude that the prohibition on using wireless communications
to take the goat did not place the guides or their client in an unfair
dilemma where they were subject to conflicting legal duties
The district court also ruled that the State's interpretation of the regulatory
scheme violated Decker and Rosenbruch-Decker's due process rights by placing them
in an irreconcilable dilemma, similar to that in Gudmundson v. State.58 We disagree.
In Gudmundson, the defendant hunters faced the difficult choice of how
to proceed after they illegally killed a sheep in a closed area.59 Upon realizing the dead
sheep was in a closed area, the hunters were in a situation where they would inevitably
commit an additional crime no matter what course of action they followed.60 If they left
the dead sheep in the field, they would commit the offense of wanton waste,61 but if
they packed the sheep out of the field, they would commit the offense of transporting
an illegally harvested animal.62 The hunters left the sheep in the field, and were
convicted of wanton waste.63 On appeal, the Alaska Supreme Court held that operation
of this regulatory scheme, under which the defendants had no choice but to further
64
violate the law, violated the defendants' substantive due process rights.
Decker and Rosenbruch-Decker argued in the district court that their case
is comparable to Gudmundson . More specifically, they contended that if they were not
58 Gudmundson v. State, 822 P.2d 1328 (Alaska 1991).
59 Id. at 1328-29.
60 Id. at 1329, 1333.
61 Id. at 1329 (citing AS 16.30.010(a)).
62 Id. (citing 5 AAC 92.140 (possession or transportation of illegally taken game)).
63 Id.
64 Id. at 1332-33; Greinier v. State, 23 P.3d 1192, 1196 (Alaska App. 2001) (citing
Gudmundson and characterizing its holding as based on substantive due process).
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allowed to use wireless communications to locate the wounded goat, they were bound
to violate at least one of three duties: (1) to not take more animals than legally
permitted,65 (2) to recover a wounded animal, and (3) to salvage all edible meat. On
appeal, Decker and Rosenbruch-Decker reframe their Gudmundson argument
somewhat. They argue that, if accepted, the breadth of the State's definition of "take"
in AS 16.05.940(35) would lead to the situation where "any choice might be found
illegal."
Decker and Rosenbruch-Decker's arguments misapprehend
Gudmundson . In Gudmundson, the defendants' first action - shooting a sheep in a
closed area - was illegal. Following this unlawful shot, the defendants faced further
criminal liability for both retrieving and not retrieving the sheep.
By contrast, the first action in Decker and Rosenbruch-Decker's case -
helping a client shoot a goat in an open area - was legal. Because the guides and their
client had not violated any game laws in firing that first shot, they were not subject to
further criminal liability for recovering the animal (as the hunters in Gudmundson
would have been).66 And they had a legal option available to them for completing the
hunt: locating and killing the goat without the use of radios. Thus, Decker and
Rosenbruch-Decker were not placed in a catch-22 situation where conflicting legal
duties would result in them committing a new criminal offense, no matter what they did
(or failed to do).
Put simply, in Gudmundson it was impossible for the hunters not to violate
any further laws. Here, while it might have been more difficult and labor-intensive for
65 Their argument was that if they advised the client to shoot a second time,
erroneously thinking that the animal the client was aiming for was the animal he had
already wounded, and the client wounded or killed a second animal, they could be charged
with allowing a client to shoot more game than legally permitted.
66 Gudmundson, 822 P.2d at 1332 (noting the defendants could have been charged
with violating 5 AAC 92.140 had they attempted to salvage the illegally harvested sheep).
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Rosenbruch-Decker and the client to hike up to the goat's likely location and find it
without using radios, it was nonetheless possible for them to do so and to complete the
hunt without violating game regulations. The district court was mistaken to conclude
that Gudmundson applied here and that it required dismissal of the charges.
Conclusion
For the foregoing reasons, the district court's order dismissing the charges
against Decker and Rosenbruch-Decker is REVERSED, and this case is remanded for
further proceedings.
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