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Peninsula Marketing Association v. Rosier (2/24/95), 890 P 2d 567
<![CDATA[
NOTICE: This is subject to formal correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, (907) 264-0607.
THE SUPREME COURT OF THE STATE OF ALASKA
PENINSULA MARKETING ASSOCIATION, )
CONCERNED AREA M FISHERMEN, )
ALEUTIANS EAST BOROUGH, )
SHUMAGIN CORPORATION, QAGAN ) Supreme Court File
TAYAGUNGIN TRIBAL COUNCIL, ) Nos. S-6413/6423
AGDAAGUX TRIBAL COUNCIL, )
UNGA TRIBAL COUNCIL, UNGA )
CORPORATION, NELSON LAGOON ) Superior Court No.
VILLAGE COUNCIL, and FALSE PASS ) 2NO-92-80 CI
TRIBAL COUNCIL, ) Consolidated with
) 1JU-94-520 CI
Petitioners, )
)
v. )
)
CARL ROSIER, in his official )
capacity as Commissioner of the )
Alaska Department of Fish and )
Game, and the ALASKA DEPARTMENT )
OF FISH AND GAME, )
)
Respondents, )
)
and )
)
NATIVE VILLAGE OF ELIM, NOME )
ESKIMO COMMUNITY, KAWERAK, INC., )
and ARCTIC REGIONAL FISH AND )
GAME COUNCIL, ) O P I N I O N
)
Respondents and )
Cross-Petitioners. ) [No. 4170 - February 24,
1995]
___________________________________)
Petition for Review from the Superior
Court of the State of Alaska, Second Judicial
District,
Nome, Richard H. Erlich, Judge.
Appearances: Michael A. D. Stanley,
Juneau, Alvin J. Ziontz and Marc D. Slonim,
Ziontz, Chestnut, Varnell, Berley and Slonim,
Seattle for Petitioners. T. Henry Wilson,
Assistant Attorney General, Anchorage, and
Bruce M. Botelho, Attorney General, Juneau,
for Respondents. Eric Smith, Anchorage, for
Respondents and Cross-Petitioners.
Before: Moore, Chief Justice,
Rabinowitz, Matthews, Compton and Eastaugh,
Justices.
COMPTON, Justice.
The Commissioner of the Department of Fish and Game
(Commissioner) presented a fisheries management proposal to the
Board of Fisheries (Board). The proposal was rejected. The
Commissioner then indicated that he intended to implement the
proposal by utilizing his emergency powers, notwithstanding the
Board's decision. The superior court enjoined the Commissioner
from using his emergency powers if based on information already
presented to the Board, but declined to enjoin him from using
those powers if based on newly developed information or events
occurring after the Board's rejection of his proposal. The
superior court also purported to authorize the governor to take
emergency action. We granted a petition and cross-petition for
review. See Alaska R. App. P. 402(a). We affirm the superior
court's order on the single issue remaining for determination.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. FACTUAL HISTORY
The Board of Fisheries placed a cap on the number of
chum salmon incidentally caught in the False Pass commercial red
salmon fishery.1 Residents of the Arctic-Yukon-Kuskokwim (AYK)
region rely on chum runs for winter food; the taking of chum is
an important aspect of the traditional subsistence lifestyle in
the area. The effect of the incidental chum harvest in the False
Pass fishery on the AYK chum returns has been a matter of
controversy and debate for years. See Peninsula Marketing Ass'n
v. State, 817 P.2d 917, 919-20 (Alaska 1991).
In 1982 and 1983 the incidental chum harvest in the
False Pass fishery was unusually high. In the mid-1980s, AYK
chum returns declined steadily. In response, the Board
promulgated a regulation closing the False Pass fishery when the
incidental harvest of chum reached a certain level. In 1986 the
chum level was capped at 400,000 fish. The cap was repealed for
the 1987 season, but reinstated at 500,000 for 1988 and 1989, and
600,000 for 1990 and 1991. In 1990, the Board also instituted
other restrictions to reduce the incidental chum harvest. The
cap was exceeded in 1991, with a chum harvest of 771,000. For
the 1992 season, the Board originally passed a variable chum cap,
but later amended the regulation to provide an overall cap of
700,000 chum, with additional restrictions to reduce the chum
harvest once 400,000 chum had been harvested. In adopting this
approach to the chum problem,
[t]he board found however, that the data
presented were insufficient to establish a
direct and biologically significant cause and
effect relationship between chum harvests in
the June fishery and depressed returns in
[the AYK area], in that reductions in the
June fishery would not be likely to produce
detectable increased [sic] in chums in the
depressed [AYK area].
The 700,000/400,000 cap was utilized during the 1992 and 1993
seasons. The decline in the AYK chum returns continued during
the early 1990s.
In 1993 there was a drastic and widespread decline in
the number of chum returning to the AYK area streams. At a
special non-regulatory meeting in December 1993, the Board
directed the Commissioner to prepare additional measures for
consideration at the Board's regular March 1994 meeting. At the
March meeting, the Commissioner recommended that the chum cap be
lowered to 300,000. The Board heard extensive public testimony
and considered staff reports on the issue. It failed to adopt
the Commissioner's proposal.2
At this meeting the Board implemented other
conservation measures to preserve AYK chum stocks. In the False
Pass area, the Board eliminated the fixed opening date and
fishing periods, granting the Commissioner the authority to use
his emergency powers in this region. "The department may open
the fishing season . . . by emergency order to allow commercial
fishing when the ratio of sockeye salmon to chum salmon indicates
that chum salmon harvest will be minimized. The department shall
establish fishing periods by emergency order." 5 AAC 09.365(d).
Governor Walter J. Hickel then directed the
Commissioner to use his emergency powers to increase the chum
escapement into various river systems, notwithstanding the
Board's failure to adopt the Commissioner's proposal to lower the
chum cap.
B. PROCEDURAL HISTORY
On April 28, 1994, the Peninsula Marketing Association
and others (PMA) filed suit in superior court in Juneau to enjoin
the Commissioner from implementing the Governor's directive. The
Native Village of Elim and others (Elim) resurrected a suit they
had filed two years earlier in Nome, in which they sought to
enjoin the 1992 700,000/400,000 chum cap.
Elim filed a motion to consolidate the Nome suit with
the suit filed by PMA; the motion was granted over PMA's
objection. Elim then filed a motion to enjoin (compel) the
Commissioner to implement the 300,000 chum cap he had recommended
to the Board. It requested expedited consideration of its
motion. PMA filed a motion for declaratory relief on its claims,
also requesting expedited consideration. Hearings on the motions
were held in Anchorage.
The court ruled from the bench on June 8, essentially
granting PMA the relief it had requested:
In this specific circumstance where the
Board has disagreed with the Commissioner's
conclusion, it is important to clarify his
emergency order authority. . . . Given the
full review of the conservation issues
presented to the Board in both December and
March meetings, the Commissioner is
prohibited from taking any action on the
[False Pass] fishery based upon the
information already presented. That does not
prevent the Commissioner from taking
emergency order authority on the [False Pass]
fishery based on some additional information
not available previously, and using the
information he already has. However, if all
the information available is only that which
was available at the Board meeting the
Commissioner is prohibited from taking
emergency order action.
In addition, the court sua sponte directed that the
question be submitted to the Governor for determination. The
court analogized the dispute between the Board and Commissioner
to that described in AS 16.05.270.3 The Governor responded by
lowering the chum cap to 350,000, although the Governor expressed
doubts concerning his power to do so.
PMA petitioned this court for review of the superior
court's order directing submission of the issue to the Governor
for determination. See Alaska R. App. P. 402(a). It also
requested "an appropriate writ"prohibiting the Governor from
implementing his decision to lower the chum cap to 350,000. Elim
filed a cross-petition for review, requesting that this court
vacate the injunction imposed on the Commissioner by the superior
court. Both parties filed emergency motions to obtain interim
relief. A single justice entered an order granting PMA's motion
to stay enforcement of the Governor's recommendation to lower the
chum cap to 350,000, and denying Elim's motion to stay the
injunction against the Commissioner. See Alaska R. App. P.
503(f). Elim sought full court reconsideration of the single
justice order. See Alaska R. App. P. 503(g). Full court
reconsideration was denied. The petition and cross-petition were
granted. See Alaska R. App. P. 402(b).
II. DISCUSSION
We granted review on only two issues: (1) "did the
superior court err in submitting the determination of the chum
cap to Governor Walter J. Hickel under AS 16.05.270?" and (2)
"did the superior court err in precluding Commissioner Carl J.
Rosier from employing his emergency powers under AS 16.05.060(a)
to a question which has been considered and resolved by the Board
of Fisheries by regulation, in the absence of significant new
facts?"
Consideration of the first issue has been waived by the
parties. At oral argument the parties agreed that AS 16.05.270
only applies where the Board has delegated its rule-making
authority to the Commissioner, and later disagrees with the use
the Commissioner makes of this delegated authority. This was not
the situation presented to the superior court. Additionally, the
parties essentially did not brief the issue. "[W]here a point is
given only a cursory statement in the argument portion of a
brief, the point will not be considered on appeal." Adamson v.
University of Alaska, 819 P.2d 886, 889 n.3 (Alaska 1991)
(citations omitted).4 Therefore, the sole issue before the
court is the scope of the Commissioner's emergency powers.
A. MOOTNESS
The issue presented is technically moot. However, we
accepted this petition and cross-petition because they fall under
the public interest exception to the mootness doctrine. In
applying the public interest exception we consider
(1) whether the disputed issues are
capable of repetition, (2) whether the
mootness doctrine, if applied, may repeatedly
circumvent review of the issues and, (3)
whether the issues presented are so important
to the public interest as to justify
overriding the mootness doctrine.
Hayes v. Charney, 693 P.2d 831, 834 (Alaska 1985). These factors
are only guidelines; application of the exception is
discretionary with the appellate court. Peninsula Marketing
Ass'n v. State, 817 P.2d 917, 920 (Alaska 1991). The issue of
the Commissioner's emergency power over matters previously
considered by the Board will likely resurface and avoid review.
By the time the court reviews the Commissioner's use of emergency
power, the emergency is likely to be over. Conservation and
utilization of fish and game resources are important to the
public interest in Alaska. For these reasons we decided to hear
the merits of this case.5
B. THE ALASKA CONSTITUTION AND THE STATUTORY FRAMEWORK
The Alaska Constitution delegates to the Alaska State
Legislature (Legislature) the allocation of power between boards
and commissioners. "The head of each principal department shall
be a single executive unless otherwise provided by law." Alaska
Const. art. III, 25 (emphasis added). "When a board or
commission is at the head of a principal department . . . its
members shall be appointed by the governor, subject to
confirmation by a majority of the members of the legislature . .
. ." Alaska Const. art. III, 26.
Although Elim concedes that the Legislature has
complete authority to allocate power within the departments, it
nonetheless argues that there is a preference for strong
department heads. It contends that those who drafted the Alaska
Constitution "left the matter to the legislature to resolve, but
within the context of an overall preference to establish strong
departmental heads to administer programs." This preference is
not supported by proceedings of the Alaska Constitutional
Convention.6 Although the proposal at the Constitutional
Convention placing all regulatory and administrative power over
fish and game in a board was defeated, the result was not to
place the department head in a position of authority over this
board.
In reviewing debate at a constitutional convention, as
with any other law-making body, it is imperative to keep issues
separate. Although Elim provides a variety of quotations from
delegates to the Alaska Constitutional Convention to demonstrate
that the framers preferred strong department heads to boards,
these quotations are used out of context and come from debates
regarding different issues. Also, not one is an excerpt of a
discussion regarding how much authority commissioners would have
in relation to boards or commissions.
Elim quoted Delegate McCutcheon as saying,
We are a group of citizenry here who
are, by and large, tired of rule by board.
It may have been necessary in a protection in
past years in order to eliminate too much
influence from an absentee governor, or one
appointed by absentees, in dominating our
Territorial affairs. We have created boards
for the purpose of getting away from
Washington, D.C., and controlling our own
affairs, but when we can elect our own
governor, he sets up his upper cabinet and
operates the government in conjunction with
the legislative branch. . . . [I] am
absolutely opposed, predicated on experience
and analysis of this thing, that we strike
this particular thing.
This statement was made in opposition to an amendment that would
have deleted the requirement in article III, section 26 that the
appointment of an executive officer of a principal department be
subject to the approval of the governor. 3 Proceedings of the
Alaska Constitutional Convention (PACC) 2249 (Jan. 16, 1956).
McCutcheon made the quoted declaration because he wanted to
ensure that the responsibility for the departments being
established was affixed to the governor.
Delegate McNealy's comments, also quoted by Elim to
demonstrate the intent of the framers, relate to a wholly
different issue. Elim quotes Delegate McNealy:
Delegate McNealy accordingly forcefully
argued against mandating the commission form
of government on the ground that it should be
left to the legislature to decide "if they
want to set up one commission, well and good,
or if they feel it is necessary to set up two
commissions under it, or under a principal
department head, or however they care to do
this . . . ."
However, Delegate McNealy's comments do not support Elim's
position that the framers intended the Commissioner to be more
powerful than the Board. Delegate McNealy's comments were made
in opposition to a proposal, adopted in article III, section 22,
authorizing the Legislature to establish regulatory and quasi-
judicial agencies. 4 PACC 2508 (Jan. 18, 1956). He was concerned
about combining rulemaking and enforcement powers in the same
body. All that Delegate McNealy's comments reveal is that the
framers intended to leave the structure of the department to the
Legislature.
Thus, Elim's argument that while the constitutional
convention delegates "did not expressly reject the use of a
board, they remained concerned that any such board should be
placed within a principal department with a head who would be
accountable directly to the governor" is unpersuasive. The
discretion granted to the Legislature by article III, section 25
of the Alaska Constitution, belies the argument that the Alaska
Constitution evidences an overall preference for strong
department heads and, implicitly, for weak boards and
commissions. See 3 PACC 2203-11 (Jan. 14, 1956); 3 PACC 2249-52
(Jan. 16, 1956); 4 PACC 2502-22 (Jan. 18, 1956). The authors of
the Alaska Constitution explicitly chose to leave the structure
of the department to the Legislature. Thus, the answer to the
question before us lies not in an analysis of constitutional
debate, but rather in the statutory framework.
C. STATUTORY FRAMEWORK -- THE COMMISSIONER
DOES NOT HAVE VETO POWER OVER BOARD DECISIONS
The statutory structure of the Department reflects a
legislative objective: (1) to divide rule-making and
administrative authority, (2) to insure that fish and game
decisions are made by knowledgeable persons, and (3) to limit the
direct influence of the Governor on daily fish and game
management issues.
Responsibility for fisheries management is divided
between the Commissioner and the Board. The Commissioner is
directed to "control the department" and "manage, protect,
maintain, improve, and extend the fish . . . resources of the
state"and is vested with all "necessary power to accomplish the
foregoing." AS 16.05.020. This is a broad grant of authority.
However, the statutory list of the specific powers and duties of
the Commissioner relates principally to administration and
budgeting. AS 16.05.050. The Board specifically is directed to
adopt regulations "establishing open and closed seasons and areas
for the taking of fish"and "setting . . . harvest levels." AS
16.05.251(2) & (3).7
By statute, the Commissioner and the members of the
Board are expected to be knowledgeable and experienced in
fisheries protection and management. AS 16.05.010; AS
16.05.221(a). The Commissioner is appointed to a five-year term.
AS 16.05.010. The members of the Board serve staggered three-
year terms. AS 16.05.221(c). Appointed members must be approved
by the Legislature in joint session and can only be removed for
specified misconduct. AS 16.05.221; AS 16.05.280. These
protective measures were instituted to ensure that fisheries
decisions are made by knowledgeable persons based on their
independent judgment, rather than immediate political pressure.
Elim concludes from the constitution and statutory
structure of the Department that the Commissioner "has
independent authority to regulate fishing on the basis of
emergency orders, either to implement the management plan or to
avoid a biological emergency that would arise should the
management plan . . . be implemented."8 The State asserts that
the Commissioner has the power to issue two types of emergency
orders: (1) field orders, which implement but do not contradict
Board regulations; and (2) true emergency orders, which can be
used to address biological crises and may contravene Board
regulations. Neither Elim nor the State suggest that there is a
limitation on the Commissioner's power to declare a biological
emergency and overrule the Board. Both rely on the unconditional
language through which AS 16.05.060(a) conveys emergency power to
the Commissioner. "This chapter does not limit the power of the
commissioner . . . when circumstances require, to summarily open
or close seasons or areas or to change weekly closed periods on
fish or game by means of emergency orders." AS 16.05.060(a).
They point out that the Commissioner's other emergency powers are
explicitly limited in AS 16.05.060(b). "The commissioner . . .
may, under criteria adopted by the Board of Fisheries, summarily
increase or decrease sport fish bag limits or modify methods of
harvest for sport fish by means of emergency orders." AS
16.05.060(b) (emphasis added).
Although both PMA and Elim emphasize the difference in
the language used in AS 16.05.060(a) and AS 16.05.060(b), their
conclusions about the meaning of this dissimilarity are
disparate. Under the interpretation advocated by Elim and the
State, the Commissioner would possess the authority to implement
regulations even when the Board had expressly rejected those
regulations. This in effect would give the Commissioner a veto
over the Board.
The Commissioner's emergency powers do not explicitly
include any veto over Board decisions.9 Under both subsections
of AS 16.05.060, any veto power must be implied. However,
implication of such a grant of power to the Commissioner would
eviscerate powers explicitly granted to the Board under AS
16.05.251. The Legislature's goal would be frustrated. Because
the Commissioner could veto any act taken by the Board, the Board
would become a mere rubber stamp or advisory body for the
Commissioner.
Stated differently, rules of statutory construction do
not permit an interpretation of AS 16.05.060 which effectively
nullifies the explicit grant of power to the Board under AS
16.05.251. Implying a grant of veto power to the Commissioner
under AS 16.05.060 would have just that effect. "A statute
should be construed so that effect is given to all its
provisions, so that no part will be inoperative or superfluous,
void or insignificant." 2A Norman J. Singer, Sutherland
Statutory Construction 46.06 (5th ed. 1992) (citations
omitted). Inferring a broad veto power would make superfluous
the detailed provisions dividing power and authority within the
Department. See AS 16.05.050; AS 16.05.241; AS 16.05.251. It
would make insignificant the statutory device for resolving
disagreements between the Board and the Commissioner. AS
16.05.270. Indeed, it would seem to make inoperative the entire
concept of the Board delegating its regulatory powers.
We conclude that the superior court correctly
identified the Commissioner's emergency powers and the limits on
those powers. This holding does not impact the Commissioner's
authority to exercise his emergency powers in a true biological
emergency. However, it does circumscribe his ability to override
the Board's decisions where he is relying on evidence already
presented to and reviewed by the Board.
D. THE BOARD MADE A FINAL DETERMINATION TO NOT
LOWER THE CHUM CAP FOR THE 1994 SEASON
As we have concluded that the Commissioner does not
have the authority to effectively veto a decision of the Board,
the only question left to address is whether the Board officially
decided not to lower the chum cap in accordance with the
management plan submitted by the Commissioner. According to the
superior court, the Board "explicitly voted to reject the
Commissioner's proposal." PMA agrees with this characterization.10
However, Elim argues that "since there was no vote by four
members of the Board on this matter, there was no formal decision
by the Board." The State appears to concede that the Board made
a decision.
Elim correctly argues that AS 16.05.320 requires that
"a majority of the full board membership is required to carry all
motions, regulations, and resolutions." AS 16.05.320. Thus, a
vote of three to two would not have sufficed to have carried the
Commissioner's proposal. However, where an amendment is offered
and it does not receive the required number of votes, and then
the proposal as a whole is voted on and is approved by the
requisite majority, a decision has been made to reject the
amendment. See Robert's Rules of Order Newly Revised 12 (9th
ed. 1990). The Board may have voted three to two to deny the
chum cap reduction, but it voted five to zero to approve the
management plan for the 1994 False Pass fishery without a chum
cap reduction. Thus, we agree with the superior court that there
was a decision by the Board to reject the Commissioner's
proposal. If the Commissioner were to institute such a chum cap,
based solely on the information he had already presented to the
Board, he would be vetoing the Board's decision not to reduce the
chum cap.
III. CONCLUSION
We AFFIRM the superior court's decision and hold that
the Commissioner may not use his emergency powers to implement a
fisheries management program already considered and rejected by
the Board, in the absence of newly developed information or
events occurring after the Board's decision.
_______________________________
1 The parties refer to this fishery variously as the
False Pass fishery, the June fishery, and the Area M fishery. To
avoid confusion, we will refer to this as the False Pass fishery.
2 The Board consists of seven members. To enact or amend
a regulation, four members of the Board must vote for the
measure. AS 16.05.320. Prior to voting on this proposal, the
Board Chair had disqualified two Board members.
The Commissioner's proposal failed with three votes for
and two against. After reconsideration, one Board member changed
his vote from for to against; again the proposal failed, this
time with two votes for and three against.
3 Alaska Statute 16.05.270 provides:
For the purpose of administering AS
16.05.251 and 16.05.255, each board may
delegate authority to the commissioner to act
in its behalf. If there is a conflict
between the board and the commissioner on
proposed regulations, public hearings shall
be held concerning the issues in question.
If, after the public hearings, the board and
the commissioner continue to disagree, the
issue shall be certified in writing by the
board and the commissioner to the governor
who shall make a decision. The decision of
the governor is final.
4 Elim declined to address the issue, except to note that
the superior court utilized AS 16.05.270 only by analogy and did
not purport to be operating under its letter. The State concedes
that the statute applies only when the Commissioner operates
"under a specific delegation of rule-making authority from the
Board." There was no such delegation in the present case. PMA
throughout its brief and oral argument opposed the superior
court's use of the statute to submit the issue to the Governor.
5 In Peninsula Marketing Ass'n v. State, 817 P.2d 917
(Alaska 1991), we discussed the application of the mootness
doctrine to disputes about the False Pass fishery. In that case,
PMA challenged (1) the reasonableness and constitutionality of
the 1988 chum cap of 500,000 fish, and (2) the Board's statutory
power to set the cap. In the second argument, PMA asserted that
the statutory authority to "establish criteria for the allocation
of fishery resources among personal use, sport, and commercial
fishing" did not give the Board the power to allocate fishery
resources between two or more commercial uses. Peninsula
Marketing, 817 P.2d at 920; see AS 16.05.251(e). PMA
distinguished between inter-group and intra-group allocations.
We held that this second argument, although technically moot, met
the requirements of the public interest exception. We held that
the first argument, the challenge to the level of the cap, was
moot and did not meet these requirements. Id. at 920.
6 It is a time honored practice to review debate at a
constitutional convention to interpret constitutional provisions.
Similarly, legislative history is reviewed in interpreting
statutes. However, Elim takes these practices a step beyond
their ordinary application. It has reviewed debate at the Alaska
Constitutional Convention to interpret the Legislature's intent
when it enacted statutes establishing the structure of the
Department of Fish and Game. Elim provides no authority to
support this analytical framework which transfers the intent of
one body to the product of another body.
7 "For purposes of the conservation and development of
the fishery resources of the state, there is created the Board of
Fisheries . . . ." AS 16.05.221(a). The Board's powers are
regulatory. "The boards have regulation-making powers as set out
in this chapter, but do not have administrative, budgeting, or
fiscal powers." AS 16.05.241. It may regulate, in accordance
with AS 44.62 (Administrative Procedure Act) almost every aspect
of fishing: fish reserves, open and closed seasons, quotas or bag
limits, means and methods by which fish can be taken, classifying
types of fishing, etc. AS 16.05.251(a).
8 The Commissioner's emergency powers under AS 16.05.060
do not explicitly grant the Commissioner the authority to veto
actions taken by the Board. The single justice order entered on
July 15, 1994, upheld the superior court's stay of the
Commissioner's use of his emergency powers based on an analysis
of the statutory framework of the Department. The single justice
concluded:
The Board has the rule-making authority
for fisheries policy in the Department. The
Commissioner is empowered to effectuate these
policies. The emergency powers granted to
the Commissioner do not give the Commissioner
a veto over the action of the Board. This
would be contrary to the statutory structure
and purpose of the Department. . . . [T]he
Commissioner's emergency powers to close a
fishery may be invoked only when new evidence
or events reveal a threat to the resource and
there is insufficient time for a formal
regulatory response by the Board.
9 PMA cites Kenai Peninsula Fisherman's Cooperative Ass'n
v. State, 628 P.2d 897 (Alaska 1981), for this proposition. In
that case, the Board and Commissioner together sought the same
result. The court's conclusion that "the Commissioner may use
the emergency order process to implement a properly adopted
management policy" does not necessarily mean that the
Commissioner may only use his emergency powers in conformity with
the Board's decision. See id. at 907. In that case the court
simply did not address the issue of a dispute between the Board
and the Commissioner.
10 PMA submitted unsigned "draft findings" from the
Board's March meeting which support the conclusion that the Board
explicitly rejected the lower chum cap. Attached was an
affidavit from Executive Director of the Board support section of
the Alaska Department of Fish and Game, Laird Jones stating that
the draft findings had been "approved"by four members and would
be "adopted"at the October 1994 meeting. Elim objects to the
use of this document because (1) one of the approving members was
disqualified and another member "has since failed to be confirmed
by the Legislature,"and (2) "neither the State nor PMA relied on
the draft"before the superior court. Elim cites no authority on
these points. The State does not object to use of the draft
findings. It is clear from the transcript of the Board's March
1994 meeting that the Board considered a number of conservation
options and that they failed to adopt the Commissioner's
suggested limit. As we do not need to rely on the draft
findings, we need not address Elim's concerns about the validity
of these documents.
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