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Shepherd v. Dept. of Fish & Game (5/19/95), 897 P 2d 33
Notice: This opinion 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,
THE SUPREME COURT OF THE STATE OF ALASKA
PETER SHEPHERD and JIM BAILEY,)
) Supreme Court Nos. S-5668/5698
Appellants and )
Cross-Appellees, ) Superior Court No.
) 4FA-90-1514 Civil
) O P I N I O N
STATE OF ALASKA, Department )
of Fish and Game, and the ) [No. 4204 - May 19, 1995]
Alaska Board of Game, )
Appellees and )
Appeal from the Superior Court of the
State of Alaska, Fourth Judicial District,
Mary E. Greene, Judge.
Appearances: Terrence H. Thorgaard,
P.C., Fairbanks, for Appellants and Cross-
Appellees. Robert C. Nauheim, Assistant
Attorney General, Anchorage, and Bruce M.
Botelho, Attorney General, Juneau, for
Appellees and Cross-Appellants.
Before: Moore, Chief Justice,
Rabinowitz, Matthews, Compton and Eastaugh,
MOORE, Chief Justice.
RABINOWITZ, Justice, concurring.
This case involves a challenge to the constitutionality
of AS 16.05.255(d), which states that regulations adopted by the
Alaska Board of Game (the Board) "must provide that . . . the
taking of moose, deer, elk, and caribou by residents for personal
or family consumption has preference over taking by
nonresidents." Pursuant to this statute, the Board adopted
regulations restricting the hunting of moose by nonresidents in
certain game management units. Two Alaska resident big game
guides challenged the constitutionality of AS 16.05.255(d) and
its related regulations under the state and federal
constitutions. One of the guides, Peter Shepherd, now appeals
the superior court's decision upholding these provisions.
Shepherd also appeals the superior court's resolution of certain
nonconstitutional aspects of the suit. Finally, both Shepherd
and the State appeal the superior court's conclusion that neither
side was a prevailing party for attorney's fees purposes. We
affirm the superior court's decision in its entirety except on
the issue of attorney's fees.
I. FACTS AND PROCEEDINGS
Peter Shepherd and Jim Bailey do business as big game
hunting guides, catering principally to nonresident moose
hunters. Shepherd operates primarily in Game Management Unit
(GMU) 19B, while Bailey conducts a substantial amount of his
guiding business in GMU 13. Both Shepherd and Bailey are Alaska
At a three-day meeting in July 1990, the Board adopted
a number of emergency regulations restricting the hunting of
moose in certain GMUs, including units 13 and 19B. In
particular, the Board closed GMU 13 to moose hunting by
nonresidents and established a fifty-inch antler limitation on
the taking of moose by nonresidents in GMU 19B.
According to the State, these changes were prompted by
this court's holding in McDowell v. State, 785 P.2d 1 (Alaska
1989) (holding unconstitutional the rural resident preference
provisions of Alaska's former subsistence law), and by depressed
moose populations after the harsh winter of 1989-90.
Anticipating increased subsistence hunting pressure on certain
moose populations because the numbers of potential subsistence
hunters had been increased as a consequence of McDowell, the
Board concluded that these moose populations could not sustain
the demand for moose by both residents and nonresidents.
The Board subsequently authorized the Commissioner of
the Alaska Department of Fish and Game to make these emergency
regulations permanent. See AS 16.05.270 (providing that the
Board may delegate its authority to adopt regulations to the
Commissioner). In November 1990 the Commissioner exercised this
delegated authority and adopted permanent regulations identical
to the emergency regulations adopted by the Board in August 1990.
At its spring 1991 meeting, the Board then adopted regulations
substantially identical to those adopted by the Commissioner.1
In August 1990 Shepherd filed suit, challenging the
validity of the emergency regulations.2 He alleged that the
regulations had been "automatically repealed" when the Board
failed to publish notice of the regulations within ten days of
their adoption as required under AS 44.62.250. Shepherd also
alleged that the regulations "and the statutes upon which they
are apparently based, AS 16.05.255(d) and AS 16.10.256,"
invidiously discriminated between Alaska residents and
nonresidents and between the guides of residents and the guides
of nonresidents, thereby violating, inter alia, the Privileges
and Immunities Clause, the Commerce Clause, and the Equal
Protection Clause of the United States Constitution. Shepherd
and Bailey (the guides) later amended their complaint to include
allegations that the regulations and statutes violated the Equal
Protection and Equal Application Clauses of the Alaska
After filing suit, the guides moved for a preliminary
injunction prohibiting enforcement of the emergency regulations.
The superior court denied the motion. Subsequently, the guides
moved for partial summary judgment on their claim that the
emergency regulations were improperly noticed and therefore
automatically repealed under AS 44.62.250. The superior court
granted this motion.
The guides then filed a second motion for partial
summary judgment, requesting that the court declare that AS
16.05.255(d) violated the federal and state constitutions. The
motion also requested that the court declare that the regulations
in effect prior to the Board's July 1990 meeting were still in
effect on the grounds that the permanent regulations had not been
properly adopted. The State opposed the motion and filed a cross-
motion for summary judgment dismissing the constitutional claims.
The State also moved to strike the guides' arguments concerning
the permanent regulations as being outside the scope of the
guides' complaint. The court granted this latter motion. The
guides immediately amended their complaint to encompass the new
In June 1992 the superior court denied the guides'
second motion for partial summary judgment and granted the
State's cross-motion for summary judgment. Ruling from the
bench, the court dismissed the Commerce Clause claim, finding
that unharvested game is not an article of interstate commerce
and that the statute's impact on the guides' interstate business
was de minimus. The court also dismissed the guides' privileges
and immunities challenge, finding that the guides had
insufficient standing to assert the claim and that, in any event,
the United States Supreme Court decision in Baldwin v. Fish &
Game Commission, 436 U.S. 371 (1978), was dispositive of the
Applying minimal rational basis scrutiny, the court
also dismissed the federal equal protection challenge. The court
found that the statute's preference for personal and consumptive
use over trophy use was a legitimate state goal. The court
further concluded that the statute was rationally related to that
goal. Finally, the court concluded that the statute did not
violate Alaska's Equal Protection Clause. In so holding, the
court applied the sliding scale of scrutiny set forth in State v.
Anthony, 810 P.2d 155 (Alaska 1991).
Finally the court denied the guides' motion for summary
judgment with respect to the permanent regulations adopted
subsequent to the July 1990 meeting of the Board. The court
ruled that the guides had presented no evidence to challenge the
presumption of validity of the regulations. The court further
noted that summary judgment was improper, since "the State would
have an opportunity to fill in some of the missing facts as to
notice public hearing [sic] and whether or not the commissioner's
authority had expired."
The guides subsequently filed a third motion for
partial summary judgment, alleging that the emergency regulations
had never been validly re-adopted as permanent regulations. The
State then filed its third cross-motion for summary judgment. In
October 1992 the court granted the State's motion, finding that
the guides had presented no evidence to overcome the presumption
The parties then entered into a stipulation, with the
court's approval, dismissing with prejudice all of the guides'
remaining claims. Both parties then moved for entry of final
judgment, each requesting an award of attorney's fees. The court
entered final judgment dismissing the guides' claims and denied
both parties' requests for attorney's fees, finding that the
guides were not public interest litigants and that neither side
had prevailed. This appeal followed.
A. Nonconstitutional Issues
1. The State's motion to strike
In their second motion for partial summary judgment,
the guides argued that the superior court's decision invalidating
the emergency regulations effectively revived the pre-July 1990
regulations governing GMUs 13 and 19 and that the permanent
regulations later adopted by the Commissioner of Fish and Game
and by the Board were procedurally invalid. On these grounds,
the guides requested the court to declare that the pre-July 1990
regulations were still valid law.
The State opposed the motion and moved to strike the
guides' arguments concerning the permanent regulations. The
State argued that the guides had "failed to allege any facts or
make any claim for relief in their complaint challenging the
validity of the regulations adopted by the Department of Fish and
Game in 1990 or by . . . the Board during its Spring 1991
meeting." The court granted the State's motion, and the guides
immediately amended their complaint to conform their pleadings to
the new claim.
On appeal, Shepherd argues that the court erred in
granting the motion to strike. He maintains that, by requiring
that the complaint be amended, the court improperly brought into
effect the statutory rebuttable presumption that all requirements
for adoption had been satisfied. See AS 44.62.100. We disagree.
Alaska Statute 44.62.100(a) provides:
The filing of a certified copy of a
regulation . . . by the lieutenant governor
raises the rebuttable presumption that
(1) it was duly adopted;
(2) it was duly filed and made
available for public inspection at the day
and hour endorsed on it; [and]
(3) all requirements of this
chapter and the regulations relative to the
regulation have been complied with . . . .
As demonstrated by the State, the Lieutenant Governor filed a
certified copy of these regulations on July 11, 1991. Thus, the
statutory presumption was triggered regardless of the manner in
which this issue was brought before the court.
In any case, the superior court's order striking the
guides' challenge to the validity of the permanent regulations
was a proper means of limiting the guides' arguments to the
claims set forth in their original complaint. As the State notes
in its brief, the guides immediately amended their complaint to
encompass their new claim, they had an opportunity to brief the
issue during the subsequent course of the litigation, and their
third motion for summary judgment addressed the validity of the
permanent regulations in depth. Thus, "the only effect of the
order . . . was to provide for an orderly consideration"of the
issues presented to the court.
2. The superior court's June 1992 order
denying partial summary judgment to the guides
In June 1992 the superior court issued an order stating
that "[t]he plaintiffs' motion for partial summary judgment on
the issue of the adequacy of the state's notice of the Board of
Game's regulations is hereby denied." This order was in response
to the following statement in the guides' second motion for
summary judgment: "[The] notice that was published did not
provide, as required by AS 44.62.200(a)(1) 'a statement of the
time, place, and nature of proceedings for adoption . . . of the
regulation' by the commissioner."
The court set forth from the bench the basis for its
order. The court found "nothing admissible in the record that
would challenge the presumption of validity of those
regulations." See AS 44.62.100. The court further stated that
"the State would have an opportunity to fill in some of the
missing facts as to notice . . . . So [the] motion . . . for
partial summary judgment's denied on that basis."
Shepherd contends that, by issuing this order, the
court "ruled that the then-current regulations had been
adequately noticed despite the fact that the issue had never been
addressed and briefed by the parties." We disagree. While
Shepherd is correct in noting that at that point in the
litigation, little attention had been paid to the issue of notice
with respect to the permanent regulations,3 the court's order is
properly interpreted only as a finding that the guides had not
established their right to summary judgment on this issue.4
B. Constitutional Issues
Shepherd appeals the superior court's determination
that AS 16.05.255(d), on its face and as implemented by the
regulations discussed above, is consistent with the United States
and Alaska Constitutions. Specifically, Shepherd asserts that
the statute violates the Equal Protection Clause and the Uniform
Application Clause of the Alaska Constitution and the Equal
Protection Clause, the Commerce Clause and the Privileges and
Immunities Clause of the United States Constitution. This court
exercises its independent judgment in reviewing constitutional
questions. Sonneman v. Knight, 790 P.2d 702, 704 (Alaska 1990).
1. Actual controversy
As a threshold issue, the State asserts that Shepherd's
constitutional challenge does not present an actual controversy
appropriate for judicial determination. The superior court ruled
that the guides had established the existence of a justiciable
controversy under Jefferson v. Asplund, 458 P.2d 995 (Alaska
1969).5 For the first time on appeal, the State argues that the
regulations at issue were adopted to implement the subsistence
priority set forth in AS 16.05.258 and that Shepherd had offered
no evidence suggesting that the regulations were promulgated
pursuant to AS 16.05.255(d).
The State's argument is inconsistent with the record
and must be flatly rejected. The record is replete with evidence
that the regulations at issue were adopted pursuant to both AS
16.05.255 and AS 16.05.258. The State expressly argued to the
superior court that AS 16.05.255(d) provided authority for the
regulations at issue. In addition, in response to the
Plaintiffs' First Set of Interrogatories, the State recognized
that the disputed "action was based on . . . statutory authority
including AS 16.05.255(d)." Thus, we affirm the superior court's
conclusion that an actual and justiciable controversy was
presented regarding the constitutionality of AS 16.05.255(d).
2. State ownership of naturally occurring
fish and wildlife
Although Shepherd has presented an array of
constitutional arguments, they have a common theme. He contends
that the State may not discriminate against nonresident
recreational hunters because residency provides no basis for
distinguishing trophy hunters from those who hunt for food:
The challenged statute, AS
16.05.255(d) is not about subsistence. This
is about Alaska hunters who do not qualify as
"subsistence users,"who do not at all need
the meat they are harvesting, being accorded
preferential treatment over non-Alaskans.
Some non-residents, particularly non-
residents in the lower grades of the
military, actually are below the officially
defined level of poverty. Some Alaskans, on
the other hand, choose to hire guides. Do
they do this with the primary purpose to put
meat on the table? Or is obtaining meat just
an incidental benefit? Even when they don't
hire guides, Alaskans . . . frequently can
and do pay more for the expenses of their
hunt than an equivalent amount of beef would
cost in the supermarket. The essential value
of hunting for most nonsubsistence hunters,
whether resident or nonresident, is the
pleasurable experience of the hunt.
The State responds that nonresident hunters primarily
hunt to obtain trophies while resident hunters generally hunt for
food. The evidence offered by both parties is anecdotal and
suppositional. We have no need to draw any conclusions
concerning this evidence because under the federal and state
constitutions the state has a special interest in the fish and
wildlife within its boundaries and is entitled to grant
allocational preferences to state resident recreational users.
In Montana Outfitters Action Group v. Fish & Game
Commission, 417 F. Supp. 1005 (D. Mont. 1976), aff'd sub nom.,
Baldwin v. Fish & Game Commission, 436 U.S. 371 (1978), a Montana
resident big game guide and several out-of-state residents
challenged the constitutionality of a Montana regulatory scheme
restricting the nonresidents' rights to hunt elk. 417 F. Supp.
at 1007. Under the regulatory scheme, nonresidents were required
to pay from seven to twenty-five times as much to obtain a
license to hunt elk. Id. The district court rejected the
hunters' challenge, squarely holding that the state was entitled
to give preferences to its residents with respect to recreational
We conclude that where the
opportunity to enjoy a recreational activity
is created or supported by a state, where
there is no nexus between the activity and
any fundamental right, and where by its very
nature the activity can be enjoyed by only a
portion of those who would enjoy it, a state
may prefer its residents over the residents
of other states, or condition the enjoyment
of the nonresidents upon such terms as it
Id. at 1010.
On appeal, the United States Supreme Court affirmed the
judgment of the district court. Baldwin v. Fish & Game Comm'n,
436 U.S. 371 (1978). The Court noted that, traditionally, states
owned or held in trust for their own citizens naturally occurring
fish and wildlife and were not required to allow nonresidents to
share in their harvest. Id. at 384-85; see, e.g., Geer v.
Connecticut, 161 U.S. 519, 530 (1896) (holding that a state may
allow its citizens to enjoy the benefits of the property
belonging to them in common "without at the same time permitting
the citizens of other states to participate in that which they do
not own"); see also McCready v. Virginia, 94 U.S. 391 (1877);
Corfield v. Coryell, 6 F. Cas. 546 (C.C.E.D. Pa. 1825) (No.
3,230). The Court went on to observe that, more recently, the
power of states to prefer their own residents concerning the
harvest of fish and game had been limited in cases where the
asserted state power was in conflict with paramount federal
interests. Baldwin, 436 U.S. at 385-86. In the absence of
paramount federal interests, however, the traditional rule still
Appellants contend that the
doctrine on which Corfield, McCready, and
Geer all relied has no remaining vitality.
We do not agree. . . . The fact that the
State's control over wildlife is not
exclusive and absolute in the face of federal
regulation and certain federally protected
interests does not compel the conclusion that
it is meaningless in their absence.
We need look no further than
decisions of this Court to know that this is
so. It is true that in Toomer v. Witsell the
Court in 1948 struck down a South Carolina
statute requiring nonresidents of the State
to pay a license fee of $2,500 for each
commercial shrimp boat, and residents to pay
a fee of only $25, and did so on the ground
that the statute violated the Privileges and
Immunities Clause. Id., at 395-403, 68
S.Ct., at 1161-1165. See also Mullaney v.
Anderson, 342 U.S. 415, 72 S. Ct. 428, 96
L.Ed. 458 (1952), another commercial-
livelihood case. Less than three years,
however, after the decision in Toomer, so
heavily relied upon by appellants here, the
Court dismissed for the want of a substantial
federal question an appeal from a decision of
the Supreme Court of South Dakota holding
that the total exclusion from that State of
nonresident hunters of migratory waterfowl
was justified by the State's assertion of a
special interest in wildlife that qualified
as a substantial reason for the
discrimination. State v. Kemp, 73 S.D. 458,
44 N.W.2d 214 (1950), appeal dismissed, 340
U.S. 923, 71 S.Ct. 498, 95 L.Ed. 667 (1951).
In that case South Dakota had proved that
there was real danger that the flyways,
breeding grounds, and nursery for ducks and
geese would be subject to excessive hunting
and possible destruction by nonresident
hunters lured to the State by an abundance of
pheasants. 73 S.D., at 464, 44, N.W.2d, at
Id. at 386-87.
That the natural resources of the state belong to the
state, which controls them as trustee for the people of the
state, is explicit in the Alaska Constitution. Article VIII,
section 2 provides:
The legislature shall provide for
the utilization, development, and
conservation of all natural resources
belonging to the State, including land and
waters, for the maximum benefit of its
(Emphasis added.) Article VIII, section 3 provides:
Wherever occurring in their natural
state, fish, wildlife, and waters are
reserved to the people for common use.
And article VIII, section 4 provides:
Fish, forests, wildlife, grasslands, and
all other replenishable resources belonging
to the State shall be utilized, developed,
and maintained on the sustained yield
principle, subject to preferences among
Similarly, this court has repeatedly observed that the
state acts as "trustee"of the naturally occurring fish and
wildlife in the state for the benefit of its citizens. See,
e.g., Gilbert v. State, Dep't of Fish & Game, 803 P.2d 391, 399
(Alaska 1990) (observing that "migrating schools of fish, while
in inland waters, are the property of the state, held in trust
for the benefit of all the people of the state, and the
obligation and authority to equitably and wisely regulate the
harvest is that of the state") (quoting Metlakatla Indian
Community v. Egan, 362 P.2d 901, 915 (Alaska 1961)); Owsichek v.
State, Guide Licensing & Control Bd., 763 P.2d 488, 495 (Alaska
1988) (noting that "the state acts 'as trustee of the natural
resources for the benefit of its citizens'").
The State of Alaska devotes substantial resources to
the protection and management of fish and wildlife. As the
trustee of those resources for the people of the state, the state
is required to maximize for state residents the benefits of state
resources. In cases of scarcity, this can often reasonably be
accomplished by excluding or limiting the participation of
nonresidents. In such circumstances, the state may, and arguably
is required to, prefer state residents to nonresidents, except
when such preferences are in conflict with paramount federal
3. Federal constitutional issues
a. Privileges and immunities
Shepherd challenged AS 16.05.255(d) under the
Privileges and Immunities Clause of the federal constitution.
U.S. Const., art. IV, 2. The superior court dismissed this
claim on two grounds. First, the court found that Shepherd had
not established standing. The court further found that, assuming
standing had been established, the United States Supreme Court's
decision in Baldwin disposed of Shepherd's claim. We affirm the
superior court in both respects.
It is now settled law that in-state residents lack
standing to challenge a state statute or municipal ordinance
under the Privileges and Immunities Clause. United Bldg. &
Constr. Trades Council v. Mayor & Council of Camden, 465 U.S.
208, 217-18 (1984); J.F. Shea Co. v. City of Chicago, 992 F.2d
745, 749 (7th Cir. 1993). Moreover, the United States Supreme
Court in Baldwin squarely held that recreational hunting is not
an activity protected under the Privileges and Immunities Clause
of the federal constitution. 436 U.S. at 379-88. As Baldwin is
legally indistinguishable from the present case, no further
discussion on this point is required.
b. Commerce Clause
The Commerce Clause of the United States Constitution
grants to Congress the power to "regulate commerce . . . among
the several states." U.S. Const. art. I, 8. In addition to
granting regulatory power to Congress, the Commerce Clause also
restricts the power of the states to erect barriers to interstate
commerce. See, e.g., Maine v. Taylor, 477 U.S. 131, 137 (1986).
The superior court dismissed the guides' Commerce Clause claim,
concluding that "unharvested game is not an article of interstate
commerce."6 The court further explained that "the only arguable
impact on interstate commerce comes from the guide's [sic]
business . . . . To the extent that that's an infringement on
interstate commerce I find it to be de minimus and not
addressable." On appeal, Shepherd argues that the statute
facially discriminates against interstate commerce, in that a
guide may be permitted to offer a specific guided hunt to a
resident, but be prohibited from offering the very same hunt to a
Shepherd's argument that AS 16.05.255(d) facially
discriminates against interstate commerce mischaracterizes the
effect of the statute. The statute and regulations promulgated
thereunder do not regulate professional guiding, but the taking
of wild game. As the State notes in its brief, this is "an
activity that does not involve articles of interstate commerce or
any commodity or service destined to become so."
Several United States Supreme Court cases have
suggested that unharvested game is not an article of interstate
commerce. For example, in Toomer v. Witsell, a case involving a
Commerce Clause challenge to a state tax on commercial shrimp
fishing, the Court stated that "the taxable event, the taking of
shrimp, occurs before the shrimp can be said to have entered the
flow of interstate commerce." 334 U.S. 385, 394-95 (1948)
(emphasis added). Likewise, in Hughes v. Oklahoma, the Court
stated that "[w]hen any animal . . . is lawfully killed for the
purposes of food or other uses of man, it becomes an article of
commerce." 441 U.S. 322, 329 (1979) (adopting view of dissent in
Geer v. Connecticut, 161 U.S. 519 (1896)) (emphasis added).
Several lower federal courts have expressly found that
unharvested game is not an article of commerce for Dormant
Commerce Clause purposes. In Terk v. Ruch, 655 F. Supp. 205 (D.
Colo. 1987), a case involving a statutory preference to state
residents over nonresidents in the hunting of bighorn sheep and
mountain goats, the court dismissed the plaintiffs' Commerce
Clause claim, holding that wild sheep and goats were not articles
of commerce. Id. at 215. Similarly, in Tangier Sound Watermen's
Ass'n v. Douglas, 541 F. Supp. 1287, 1306 (E.D. Va. 1982), the
court stated that "[p]laintiffs have not established that
unharvested crabs are articles of commerce." Thus, the court was
"not convinced that the Commerce clause reaches a [Virginia] law
whose effect is to prohibit a nonresident commercial crabber from
catching crabs in Virginia." Id. at 1306.
That unharvested game is not an article of commerce is
particularly clear where the game, after its taking, is still not
destined for interstate commerce. See Hicklin v. Orbeck, 437
U.S. 518, 533 (1978) (Commerce Clause circumscribes a State's
ability to prefer its own citizens in the utilization of "natural
resources . . . destined for interstate commerce") (emphasis
added); Terk, 655 F. Supp. at 215 (noting that, under Colorado
law, it is illegal to sell wild game and sheep). In Alaska, the
sale or purchase of moose is prohibited. AS 16.05.920(a) (unless
permitted by statute or regulation, a person shall not "take,
possess, transport, sell, offer to sell, purchase, or offer to
purchase . . . game . . . or any part of . . . game"). We
therefore affirm the superior court's conclusion that unharvested
game is not an article of commerce.
In Maine v. Taylor, the Supreme Court set forth the
analysis to be used in addressing Dormant Commerce Clause claims:
[T]his Court has distinguished between
state statutes that burden interstate
transactions only incidentally, and those
that affirmatively discriminate against such
transactions. While statutes in the first
group violate the Commerce Clause only if the
burdens they impose on interstate trade are
"clearly excessive in relation to the
putative local benefits,"statutes in the
second group are subject to more demanding
scrutiny. . . . [O]nce a state law is shown
to discriminate against interstate commerce
"either on its face or in practical effect,"
the burden falls on the State to demonstrate
both that the statute "serves a legitimate
local purpose,"and that this purpose could
not be served as well by available
477 U.S. at 138 (citations omitted); see also Clajon Prod. Corp.
v. Petera, 854 F. Supp. 843, 858 (D. Wyo. 1994) (if effects of
regulation on interstate commerce are only incidental, regulation
is presumptively valid).
As discussed above, the statute and regulations at
issue regulate only the taking of wild game, which does not
affirmatively discriminate against interstate commerce. The
effect of these provisions on Shepherd's business as a guide is
only an incidental effect of an otherwise valid regulation.
Thus, AS 16.05.255(d) violates the Commerce Clause only if the
burdens imposed on interstate commerce are "clearly excessive in
relation to the putative local benefits"of the statute. See
Clajon Prod. Corp., 854 F. Supp at 858-59 (state licensing scheme
which granted a preference to resident hunters over nonresident
hunters was not facially discriminatory for Dormant Commerce
In Pike v. Bruce Church, 397 U.S. 137 (1970), the
Supreme Court discussed the "clearly excessive"test.
If a legitimate local purpose is found,
then the question becomes one of degree. And
the extent of the burden that will be
tolerated will of course depend on the nature
of the local interest involved, and on
whether it could be promoted as well with a
lesser impact on interstate activities.
Id. at 142.
In the present case, the State asserts that the
resident preference serves the purpose of conserving scarce
wildlife resources for Alaska residents. This unquestionably
represents a legitimate state interest. See Taylor, 477 U.S. at
151 (a state "retains broad regulatory authority to protect the
health and safety of its citizens and the integrity of its
natural resources"); Commercial Fisheries Entry Comm'n v.
Apokedak, 606 P.2d 1255, 1265 (Alaska 1980) (conservation of
wildlife is legitimate purpose).
The State also presented evidence of increased demand
upon wildlife resources, both by resident and nonresident
hunters. In addition, the State also notes that, as a result of
the harsh winter of 1989-90, moose populations in the relevant
units were depressed prior to the adoption of the regulations at
issue. Moreover, as the trial court noted, the burden placed on
interstate commerce by the regulation restricting nonresident
moose hunting in certain GMUs is de minimus. Thus, we affirm the
superior court's dismissal of Shepherd's Commerce Clause claim.7
c. Federal equal protection
Shepherd appeals the superior court's determination
that AS 16.05.255(d) does not violate the Equal Protection Clause
of the Fourteenth Amendment.8 Applying rational basis scrutiny,
the superior court concluded that the preference of personal and
family consumptive uses by residents over trophy use by
nonresidents constituted a legitimate state purpose.9 The court
further found that the classification scheme set forth in the
statute and regulations bore a rational relationship to that
In our view, the fact that the moose populations in the
GMUs at issue are insufficient to tolerate unlimited recreational
hunting by both resident and nonresident recreational hunters,
taken together with the state's interest as trustee of its
wildlife for the benefit of state residents, justifies the
restriction. As the district court stated in DeMasters v.
Montana, 656 F. Supp. 21 (D. Mont. 1986):
It is the special interest of
Montana's citizens in the state's elk herds
that is at the root of the statutory
distinction between resident and nonresident
hunters. Montana is not prohibited from
preferring its residents over nonresidents in
allocating access to recreational hunting
opportunities. There is no irrationality in
Montana's legislative decision to utilize
limitation of the number of nonresident big-
game hunters as an effective game management
Id. at 24-25 (citations omitted).
4. Alaska constitutional issues
Shepherd contends that AS 16.05.255(d) violates the
Equal Rights and Opportunities Clause of the Alaska Constitution.10
He also argues that the statute violates the Uniform Application
Clause of the Alaska Constitution.11 Both of these contentions
lack merit for the same reason. Alaska residents and
nonresidents are not similarly situated with respect to their
rights of access as recreational users to the fish and game of
The Equal Rights and Opportunities Clause of the Alaska
Constitution requires equal treatment only for those who are
similarly situated. See Alaska Pacific Assurance Co. v. Brown,
687 P.2d 264, 271 (Alaska 1984) (right to equal treatment of
those similarly situated is general principle underlying Alaska's
Equal Rights and Opportunities Clause); Ketchikan Gateway Borough
v. Breed, 639 P.2d 995, 995 (Alaska 1981) ("[e]qual protection
requires that those similarly situated be treated equally").
Likewise, the Uniform Application Clause explicitly
requires equal treatment only of persons "similarly situated with
reference to the subject matter and purpose to be served by the
law or regulation." Alaska Const. art. VIII, 17; see Gilbert
v. State, Dep't of Fish & Game, 803 P.2d 391, 398-99 (Alaska
1990) (Uniform Application Clause does not apply to two different
groups of fishermen who participated in two different fisheries).
Resident and nonresident recreational users of Alaska
fish and game are not similarly situated.12 As noted above,
subsection B.2., the state owns these resources and is required
to manage them as trustee for the benefit of its citizens. The
preference for Alaska residents with respect to natural resources
is explicit in the state constitution and serves to differentiate
resident from nonresident user groups.
C. Attorney's Fees
Both Shepherd and the State appeal the superior court's
finding that neither party prevailed for attorney's fees
purposes. Designation of the prevailing party "is committed to
the broad discretion of the trial court." Apex Control Sys.,
Inc. v. Alaska Mechanical, Inc., 776 P.2d 310, 314 (Alaska 1989).
This court will not interfere with the trial court's
determination of prevailing party status unless it is an abuse of
discretion or "manifestly unreasonable." Hillman v. Nationwide
Mut. Fire Ins., 855 P.2d 1321, 1326 (Alaska 1993); Tobeluk v.
Lind, 589 P.2d 873, 879 (Alaska 1979).
We have repeatedly held that a prevailing party is the
party "who has successfully prosecuted or defended against the
action, the one who is successful on the 'main issue' of the
action and in 'whose favor the decision or verdict is rendered
and the judgment entered.'" Adoption of V.M.C., 528 P.2d 788,
795 n.14 (Alaska 1974) (citations omitted). Where each party
prevails on a "main issue,"the court retains the discretion not
to award any fees and costs. Tobeluk, 589 P.2d at 877.
In this case, both parties argue that they prevailed on
the main issue of the case. Shepherd asserts that he
successfully established that the emergency regulations adopted
by the Board in July 1990 were improperly noticed and therefore
"automatically repealed"under AS 44.62.250. The State asserts
that it successfully established the constitutional and
procedural validity of the permanent regulations. The trial
court dismissed both parties' motions for attorney's fees,
apparently finding that each party had prevailed on a "main
issue." We disagree.
Taking the litigation as a whole, we believe that it is
"manifestly unreasonable"to characterize the procedural validity
of the emergency regulations as a main issue of this case.
Shortly after the emergency regulations were adopted and before
the guides filed their original complaint, the Board delegated
authority to the Commissioner of the Alaska Department of Fish
and Game to make these emergency regulations permanent. Both the
Commissioner and the Board subsequently adopted permanent
regulations substantially identical to the emergency regulations.
The procedural validity of the emergency regulations is only
peripheral to the central issue litigated by the parties -- the
constitutionality of AS 16.05.255(d). Cf. De Witt v. Liberty
Leasing Co., 499 P.2d 599, 601 (Alaska 1972) (reversing trial
court's determination that neither party was the prevailing party
where one party received a $17,736.11 judgment offset by a $93.64
judgment in favor of the other party). We therefore reverse the
superior court's determination that the State was not the
Shepherd also argues that the court erred in concluding
that he was not a public interest litigant. As a public interest
litigant, Shepherd would be immune from a fee award in favor of
the State. See, e.g., Anchorage v. McCabe, 568 P.2d 986, 989,
993-94 (Alaska 1977). A trial court's finding as to a litigant's
public interest status is reviewed under the abuse of discretion
standard. Citizens Coalition v. McAlpine, 810 P.2d 162, 171
(Alaska 1991); Anchorage Daily News v. Anchorage Sch. Dist., 803
P.2d 402, 404 n.2 (Alaska 1990).
In Anchorage Daily News, this court set forth the
criteria that a litigant must satisfy to be deemed a public
(1) Is the case designed to effectuate
strong public policies?
(2) If the plaintiff succeeds will
numerous people receive benefits from the
(3) Can only a private party have been
expected to bring the suit?
(4) Would the purported public interest
litigant have sufficient economic incentive
to file suit even if the action involved only
narrow issues lacking general importance?
803 P.2d at 404. A party must satisfy all four criteria to
qualify as a public interest litigant. McAlpine, 810 P.2d at
In the present case, Shepherd arguably meets the first
three requirements. However, Shepherd cannot satisfy the fourth
requirement. As a big game guide who admittedly does a
"substantial portion of his business . . . guiding . . .
nonresident moose hunters within Game Management Unit 19B,"
Shepherd was primarily motivated to litigate by concerns for his
own economic livelihood. Thus Shepherd is not entitled to public
interest litigant status. See Anchorage Daily News, 803 P.2d at
404; Sisters of Providence, Inc. v. Department of Health & Social
Servs., 648 P.2d 970, 980 (Alaska 1982).
Based on the above analysis, we affirm the superior
court's handling of this case in its entirety except on the issue
of attorney's fees. The court did not err in requiring the
guides to amend their complaint to encompass regulations other
than the original emergency regulations, nor did the court err in
denying summary judgment to the guides on the issue of notice of
the permanent regulations.
The court was also correct in finding for the State on
the guides' constitutional claims. Shepherd does not have
standing, as an Alaska resident, to challenge AS 16.05.255(d)
under the federal Privileges and Immunities Clause. Moreover,
the United States Supreme Court's decision in Baldwin is
dispositive of his privileges and immunities claim. Shepherd's
Commerce Clause claim also fails, since unharvested game is not
an article of interstate commerce and the restriction on his
right to guide nonresident hunters is a permissible incidental
effect of the regulation. Shepherd's equal protection claims
also fail. Resident and nonresident hunters, and their guides,
are not similarly situated with respect to access to Alaska's
Finally, although the court did not abuse its
discretion in determining that the guides were not public
interest litigants, we hold that the court erred in finding that
the State was not the prevailing party.
AFFIRMED, in part, REVERSED, in part, and REMANDED.
RABINOWITZ, J., concurring.
I disagree with the court's analysis of Shepherd's
equal protection claim under Alaska's constitution. In analyzing
Shepherd's claim, the court states that Alaska's equal protection
clause "requires equal treatment only for those who are similarly
situated." The court then concludes that "[r]esident and
nonresident recreational users of Alaska fish and game are not
similarly situated." In footnote 12, the court explains as
follows: "Concluding that two classes are not similarly situated
necessarily implies that the different legal treatment of the two
classes is justified by the differences between the two classes."13
Thus, the court disposes of Shepherd's claim without applying the
sliding scale test.14 In my view, we should apply the sliding
scale test and determine "whether a legitimate reason for
disparate treatment exists, and, given a legitimate reason,
whether the enactment bears a fair and substantial relationship
to that reason."15 Gonzales v. Safeway Stores, Inc., 882 P.2d
389, 396 (Alaska 1994).
We have previously disposed of claims under the Alaska
equal protection clause after determining that two groups are not
similarly situated without explicitly applying the sliding scale
test.16 However, in my view, simply determining that residents
and nonresidents are not similarly situated inadequately analyzes
the issue in this case under our equal protection clause. Such a
determination simply begs the question of whether the
classification itself is reasonable and whether it justifies
Professor Laurence Tribe notes that under federal equal
protection jurisprudence, the Supreme Court has virtually always
considered the reasonableness of legislative and administrative
classifications. Laurence H. Tribe, American Constitutional Law
16-1, at 1438 (2d ed. 1988). To this effect, he states as
The Court's original conception of the
"reasonableness"required, however, was very
limited: no regulatory provision was
repugnant to equal protection as long as it
"place[d] under the same restrictions, and
subject[ed] to like penalties and burdens,
all who . . . [were] embraced by its
prohibitions; thus recognizing and preserving
the principle of equality among those engaged
in the same [regulated activities.]" But
this narrow view of nondiscriminatory
application within the established class was
soon discarded as empty of content, since
persons or activities treated differently by
government could for that very reason be
deemed not "the same." Unaccompanied by any
independent measure of when persons or acts
were inherently equivalent, the original test
afforded virtually no scope for review. To
provide content, equal protection came to be
seen as requiring "some rationality in the
nature of the class singled out," with
"rationality" tested by the classification's
ability to serve the purposes intended by the
legislative or administrative rule: "The
courts must reach and determine the question
whether the classifications drawn in a
statute are reasonable in light of its
purpose. . . ."
Id. at 16-1, at 1439-40 (footnotes omitted) (quoting Powell v.
Pennsylvania, 127 U.S. 678, 687 (1888); Rinaldi v. Yeager, 384
U.S. 305, 308-09 (1966); McLaughlin v. Florida, 379 U.S. 184, 191
(1964)). Thus, under federal equal protection analysis, a court
considers the reasonableness of legislative and administrative
classifications even when the court determines that two groups
are not similarly situated.17 The requirement that a court
consider the reasonableness of classifications is even more
compelling under Alaska's equal protection clause which has been
construed by this court to provide greater protection of
individual rights than its federal counterpart. State v.
Anthony, 810 P.2d 155, 157 (Alaska 1991).
Applying our sliding scale equal protection analysis to
the facts appearing in this record, I conclude that there is no
equal protection violation and therefore concur with the
majority's result. The individual interest impaired is the right
of nonresidents to hunt moose in Alaska. This interest is
subject to minimal scrutiny. The articulated purpose of the
enactment is to conserve the State's wildlife resources for
Alaska residents to use as food. This purpose is supported by
several provisions of the Alaska Constitution. Alaska Const.
art. VIII, 2, 3 & 4. Finally, the State's purpose must bear a
fair and substantial relationship to the State's means of
furthering that purpose. Based on the relevant provisions of the
Alaska Constitution, the distinction drawn between residents and
nonresidents in AS 16.05.255(d) bears a fair and substantial
relationship to the State's purpose of conserving wildlife
resources for Alaska residents to use as food. Thus, after
engaging in the appropriate constitutional analysis, I conclude
that AS 16.05.255(d) is valid under the equal protection clause
of Alaska's constitution.
1 In 1993 the Board reopened GMU 13 to nonresident moose
hunters on the same basis as resident moose hunters. Regulations
governing GMU 19B have remained unchanged. 5 Alaska
Administrative Code (AAC) 85.045 (11), (17) (1993).
2 Bailey joined in the suit shortly thereafter.
3 Shepherd's assertion that the issue of notice had never
been addressed by the parties is incorrect, as it is clear that
the court's ruling was in response to the challenge (however
brief) to the adequacy of notice set forth in the guides' second
motion for summary judgment. Moreover, the court was correct in
finding that the guides had offered no evidence in support of
their assertion that notice was inadequate.
4 Indeed, the order did not foreclose the guides'
opportunity to fully litigate the validity of the permanent
regulations. The guides' third motion for partial summary
judgment and the State's third cross-motion for summary judgment
directly addressed the issue, the issue was resolved in favor of
the State, and the guides do not appeal that decision.
5 Asplund provides:
A justiciable controversy is thus
distinguished from a difference or dispute of
a hypothetical or abstract character; from
one that is academic or moot. The
controversy must be definite and concrete,
touching the legal relations of parties
having adverse legal interests. It must be a
real and substantial controversy admitting of
specific relief through a decree of a
conclusive character, as distinguished from
an opinion advising what the law would be
upon a hypothetical state of facts.
458 P.2d 995, 998-99 (Alaska 1969) (quoting Aetna Life Ins. Co.
v. Haworth, 300 U.S. 227, 240-41 (1937)).
6 The superior court apparently found that the guides had
standing to raise the Commerce Clause issue. Although this issue
was not fully briefed on appeal, the State asserts in a footnote
that "it is extremely doubtful that the guides have standing to
assert the federal constitutional rights alleged to be violated
by AS 16.05.255(d)." Emphasizing that this statute does not
discriminate against professional guides, the State argues that
even if the type of economic injury suffered by the guides is
sufficient to confer interest-injury standing under state law,
see State, Dep't of Transp. v. Enserch Alaska Constr., Inc., 787
P.2d 624, 630 (Alaska 1989), it is not sufficient to confer
interest-injury standing under federal law. Because we hold that
Shepherd's Commerce Clause claim fails on the merits, we will not
address the federal standing issue framed by the State. See
Wirum & Cash Architects v. Cash, 837 P.2d 692, 713-14 (Alaska
1992) (this court may decline to address an issue which is
inadequately briefed on appeal).
7 In his reply brief, Shepherd asserts that the Commerce
Clause is implicated not so much "by the interstate shipment of
moose meat, but by the interstate transportation of hunters to
and from Alaska." This is likewise only an incidental effect on
interstate commerce, subject to the same analysis and result set
8 The Equal Protection Clause of the Fourteenth Amendment
provides: "No state shall . . . deny to any person within its
jurisdiction the equal protection of the laws." U.S. Const.
amend. XIC, 1.
9 The superior court concluded that the guides had
standing to raise a federal equal protection claim. As noted in
footnote 6, supra, we do not address the federal standing issue.
10 The Equal Rights and Opportunities Clause of the Alaska
Constitution provides, in part: "All persons are equal and
entitled to equal rights, opportunities and protection under the
law." Alaska Const. art. I, 1.
11 The Uniform Application Clause provides: "Law and
regulations governing the use or disposal of natural resources
shall apply equally to all persons similarly situated with
reference to the subject matter and purpose to be served by the
law or regulation."Alaska Const. art. VIII, 17.
12 Concluding that two classes are not similarly situated
necessarily implies that the different legal treatment of the two
classes is justified by the differences between the two classes.
Such a conclusion reflects in shorthand the analysis
traditionally used in our equal protection jurisprudence. See,
e.g., Gonzales v. Safeway Stores, Inc., 882 P.2d 389 (Alaska
1994); State v. Anthony, 810 P.2d 155 (Alaska 1991). We have
generally used this abbreviated analysis only in clear cases, of
which this is one.
13 While I agree that there may be cases in which the
classes at issue are so obviously different that the "implied
analysis" suggested by the court is appropriate, I do not agree
that it is appropriate for the classification in this case
between residents and nonresidents.
I note that in Alaska Pacific Assurance Co. v. Brown,
687 P.2d 264 (Alaska 1984), a case cited by the majority, we
applied our sliding scale test to a classification contained in
the Workers' Compensation Act which differentiated between
residents and nonresidents for purposes of determining the amount
of workers' compensation benefits. Id. at 269-74. This court
concluded that the classification was unconstitutional. Id. at
14 In analyzing equal protection issues under the Alaska
Constitution, this court applies a three-step sliding scale test:
First, it must be determined . . . what
weight should be afforded the constitutional
interest impaired by the challenged
enactment. The nature of this interest is
the most important variable in fixing the
appropriate level of review. . . .
Second, an examination must be
undertaken of the purposes served by the
challenged statute. Depending on the level
of review determined, the state may be
required to show only that its objectives
were legitimate, at the low end of the
continuum, or, at the high end of the scale,
that the legislation was motivated by a
compelling state interest.
Third, an evaluation of the state's
interest in the particular means employed to
further its goals must be undertaken. . . .
At the low end of the sliding scale, we have
held that a substantial relationship between
means and ends is constitutionally adequate.
At the higher end of the scale, the fit
between the means and ends must be much
closer. If the purpose can be accomplished
by a less restrictive alternative, the
classification will be invalidated.
State v. Anthony, 810 P.2d 155, 157 (Alaska 1991) (quoting Alaska
Pacific Assurance Co. v. Brown, 687 P.2d 264, 269-70 (Alaska
15 The constitutional right to equal protection requires
that state and local governments treat those who are similarly
situated alike. Gonzales, 882 P.2d at 396. In considering equal
protection cases a court must determine whether two groups of
people who are treated differently are similarly situated and
thus entitled to equal treatment. Id. To this effect, at the
low end of the scale this court reviews legislatively created
classifications "by asking whether a legitimate reason for
disparate treatment exists, and, given a legitimate reason,
whether the enactment bears a fair and substantial relationship
to that reason." Id.
16 In Smith v. State, 872 P.2d 1218 (Alaska 1994), this
court disposed of an equal protection claim based upon its
conclusion that discretionary and mandatory parolees are not
similarly situated for purposes of receiving an in-person hearing
to determine their eligibility for release. Id. at 1226-27. In
Moore v. Beirne, 714 P.2d 1284 (Alaska 1986), this court
concluded that applicants for adult public assistance who have
been found eligible to receive interim assistance and applicants
who have been found to be disabled are not similarly situated for
purposes of setting the amount of assistance. Id. at 1287. And
in Ketchikan Gateway Borough, Alaska v. Breed, 639 P.2d 995
(Alaska 1981), this court determined that those who dock a light
plane at a seaplane float and those who land at the Ketchikan
International Airport are not similarly situated for purposes of
requiring landing fees. Id. at 996.
17 For example, in Schweiker v. Hogan, 457 U.S. 569, 588-93
(1982), Michael M. v. Sonoma County Superior Court, 450 U.S. 464,
472-73 (1981), and Dobbert v. Florida, 432 U.S. 282, 361 (1977),
the Supreme Court concluded that the classes at issue were not
similarly situated but then went on to determine whether the
classifications pass constitutional muster under the appropriate
federal level of scrutiny.