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Payton v. Dep't. of Fish & Game (6/13/97), 938 P 2d 1036
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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,
Alaska 99501; (907) 264-0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
TOM and DIANE PAYTON, on )
behalf of themselves and ) Supreme Court No. S-7557
others similarly situated, )
) Superior Court No.
Appellants, ) 3AN-94-1750 CI
)
v. ) O P I N I O N
)
STATE OF ALASKA and FRANK ) [No. 4831 - June 13, 1997]
RUE, in his official capacity )
as Commissioner of Fish and )
Game, )
)
Appellees. )
______________________________)
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Milton M. Souter, Judge.
Appearances: William E. Caldwell, Alaska Legal
Services Corporation, Fairbanks, for Appellants. Kevin M. Saxby,
Assistant Attorney General, Anchorage, and Bruce M. Botelho,
Attorney General, Juneau, for Appellees.
Before: Compton, Chief Justice, Rabinowitz,
Matthews, Eastaugh, and Fabe, Justices.
FABE, Justice.
I. INTRODUCTION
Tom and Diane Payton seek to have a subsistence fishery
created in the upper Yentna River area. The Board of Fisheries
(Board) denied the Paytons' repeated proposals for such a fishery,
and the Paytons appealed to the superior court. The superior court
granted summary judgment against the Paytons, concluding that (1)
the Board correctly interpreted statutory and regulatory provisions
relating to subsistence and (2) there was ample evidentiary support
for the Board's finding that current uses of salmon in the upper
Yentna River area were not sufficiently customary and traditional
to qualify as subsistence uses. On appeal, the Paytons challenge
both of these conclusions. We reverse the superior court's
decision with directions to remand this case to the Board for
further proceedings.
II. FACTS AND PROCEEDINGS
The Paytons moved to Skwentna near the upper Yentna River
in 1975. Since then, they have submitted to the Board several
proposed regulations that would establish a subsistence fishery in
the upper Yentna River area.
The Board considered the Paytons' first proposal,
Proposal 405, at its March 1988 meeting. During its deliberations,
the Board recognized that to consider Proposal 405, it had to
determine whether current uses of salmon in the upper Yentna River
area were "customary and traditional."[Fn. 1] Therefore, it
proceeded to apply the criteria for identifying customary and
traditional subsistence uses set forth in a regulation of the Joint
Boards of Fisheries and Game. [Fn. 2] The Board heard reports and
statements from several individuals. Near the end of this
testimony, Board members expressed particular interest in how long
residents of the Skwentna area had been taking salmon and whether
current residents' methods of handling, preparing, and sharing
salmon reflected knowledge that had been handed down by prior
generations.
The Board learned that the population of the upper Yentna
River area had fluctuated radically throughout history. During the
19th century "several hundred"Alaska Natives occupied villages in
the area. However, following the departure of many residents and
the onslaught of a devastating influenza epidemic, the population
dwindled. The area continued to experience extreme population
swings until the 1980s, when the population steadily rose to
approximately 150-200 persons in 1987.
Due to this fluctuation, research presented to the Board
by the Division of Subsistence indicated that 20% of the population
of the upper Yentna River area had been there for more than twenty
years, while 63.6% had been there less than ten years. The
research also showed that the average length of residency in the
area was about eight years. However, testimony revealed that this
population study did not reflect "a number of households"that had
been there since the 1920s and 1930s but whose members had died or
moved away just prior to the study.
The Board also learned that historically the Alaska
Native residents of the area dried, smoked, and fermented salmon
and that "much of the fish and game harvest taking place in the
area today [is] preserved by methods not requiring electricity such
as smoking, canning, jarring, [and] freezing out of doors." Upon
specific inquiry by the Board, the division compared preservation
methods in the upper Yentna River area to those in Tyonek, English
Bay, and Port Graham, where the Board had already established
subsistence fisheries. It explained that people in those villages
smoke, dry, and can salmon as well as freeze it in electric
freezers.
The Board received little testimony about the extent to
which upper Yentna River area residents shared salmon. The
division reported that "we know that sharing and distribution of
resources is common, mostly at the sub-community level." The
division explained that several households in the upper Yentna
River area share salmon with each other. However, it apparently
did not have sufficient information to respond to the Board's
questions about whether the pattern of sharing in Tyonek, English
Bay, and Port Graham was significantly different.
Based upon this testimony, the Board concluded that there
was insufficient evidence that current uses of upper Yentna River
area salmon were customary and traditional. Although the Board did
not make written findings in March 1988, some members orally
expressed why they voted the way they did. The Chair, Gary Slaven,
explained:
I don't hear any talk of traditional fish
camps, smoke house areas, traditional fishing areas. I note that
many of these communities from the information we've been given are
land lottery communities which aren't even the same communities
that people lived in prior to the 1950's. I note that the
population dynamics of the area seem to be very mobile and it seems
to be a transient population that comes and goes so I can't--I
can't find anywhere in the information I've been given or in the
public testimony that--that there's any sort of large proportion of
people who've lived here for long enough to even have established
a generation to generation customary and traditional use, and for
those reasons and for the reasons that the population is increasing
dramatically there since 1980 . . . I just can't vote to find that
there are customary and traditional use of the fish stocks by the
people . . . .
Other members appeared to agree with Slaven, and all of them voted
against a motion to find that the uses were customary and
traditional. [Fn. 3]
After the Board rejected Proposal 405, the Paytons
submitted a second proposal, Proposal 7, which the Board considered
in December 1988. The first individual to testify, Dr. Jim Fall of
the Division of Subsistence, indicated that Proposal 7 was
"virtually identical"to Proposal 405. He stated that the division
possessed no research or data that had not already been presented
to the Board during the March 1988 hearings relating to Proposal
405.
The Board agreed that Proposal 7 was substantially
similar to Proposal 405 and rejected the proposal for the same
reasons. The Board subsequently drafted written findings to record
its basis for rejecting the proposals. These written findings
contained eight items, each of which related to one of the eight
criteria for determining whether uses of salmon are "customary and
traditional." Of particular relevance to this case, the Board
found that
(1) although there was evidence that the area
in question had a long-term use pattern by a variety of people,
that pattern has been significantly interrupted as different groups
of people moved in and out of the area. . . .
. . . .
(5) public testimony and information from the
Subsistence Division indicated that most people can, smoke, or
freeze salmon. There is no evidence that local fishermen split or
dry salmon, a common practice in other subsistence fisheries in the
Cook Inlet region. The practice of splitting and drying salmon is
one that is handed down from one generation to another in this
region. . . .
(6) there was also no information to indicate
that current area residents developed use patterns based on
knowledge of fishing skills, values, and lore which was handed down
from generation to generation since the families in the area have
not been in the area for successive generations. Although the area
has been continuously populated by a small number of year-round
residents since the 1920's, there is no evidence that families
remained in the area for more than one generation. . . . This
pattern is in direct contrast to the pattern in other Cook Inlet
subsistence communities such as Tyonek, English Bay, and Port
Graham where the younger generations have continued to reside in
the same communities as their parents and grandparents;
(7) although the information presented did
indicate that people in the area may share salmon with neighbors,
they do not appear to have developed a systematic pattern of
sharing based on kinship ties of historical practices; and finally
(8) the use pattern established in the current
community does not demonstrate that the community substantially
relies on the salmon resource for its economic, cultural, social
and nutritional needs in the same way that other customary and
traditional users in this region do (Tyonek, Port Graham, and
English Bay). Although the information the board received does
indicate that local harvests of fish and game are diverse and that
salmon constitute approximately 25% of the total resource harvests,
there is no long term, consistent pattern of ties to the area and
to the dependence on the area's resources.
After the Board rejected Proposal 7, the Paytons filed a
lawsuit in superior court to challenge the Board's actions. The
superior court granted summary judgment against the Paytons, who
appealed to this court. While the Paytons' appeal was pending, we
issued our decision in McDowell v. State, 785 P.2d 1 (Alaska 1989).
We subsequently concluded that McDowell had mooted the Paytons'
appeal. [Fn. 4]
A few months later, on March 23, 1992, the Paytons filed
with the Board a third petition, Proposal 362, for a subsistence
fishery in the upper Yentna River area. As with Proposals 405 and
7, the Board recognized that it could not properly consider
Proposal 362 without first determining whether current uses of
upper Yentna River area salmon were customary and traditional. The
Board was advised that the regulatory criteria for finding a use to
be customary and traditional were "substantially the same"as the
criteria applicable to its decisions about Proposals 405 and 7.
Therefore, during the Proposal 362 hearings, Board members focused
on whether there was any new information that would cause them to
disavow their prior conclusions that current uses of upper Yentna
River salmon were not customary and traditional.
The Division of Subsistence orally informed the Board
that it had collected no new data since the Board's hearings on
Proposal 7. However, the division's written report to the Board
stated: "In the [Proposal 405] worksheet, it is implied that
Dena'ina Athabaskans did not use this area after 1934. In fact,
uses by Dena'ina . . . occurred until the early 1960s." The
division also noted that it had "information from taped interviews
with Skwentna area residents regarding Criterion 6,
'intergenerational transmission of knowledge' which was not
included in the [Proposal 405] worksheet; this information can be
summarized orally if there are questions about it from Board
members." Despite the fact that the Board neither reviewed nor
asked questions about those taped interviews, its members
apparently concluded that there was no new information that would
cause them to revise their 1988 findings and voted unanimously to
reject Proposal 362.
On February 25, 1994, the Paytons brought this action to
challenge the Board's decision to reject Proposal 362. The parties
filed cross-motions for summary judgment as to the Paytons' claims
under AS 16.05.258 and its implementing regulations. On October 6,
1995, the court denied the Paytons' motion and granted the State's
motion. The court held:
Unquestionably, the Board of Fisheries could
have decided this case favorably for the [Paytons], but it appears
equally clear that the Board's decision against the [Paytons] is
amply supported by the evidence that was presented to it and that
the Board's interpretation and application of the statutory and
regulatory provisions was correct.
After the superior court entered partial final judgment against
them, the Paytons appealed.
On appeal, the Paytons claim that the Board violated AS
16.05.258 and 5 AAC 99.010(b) when it rejected Proposal 362.
Specifically, the Paytons assert that the Board erred by construing
5 AAC 99.010(b) in a manner that is inconsistent with AS 16.05.258.
They also contend that the Board applied its regulations
arbitrarily and unreasonably. The State responds by arguing that
the Paytons' appeal is moot. Alternatively, the State contends
that the Board did not err when it rejected Proposal 362.
III. STANDARD OF REVIEW
We review the superior court's grant of summary judgment
de novo. Nielson v. Benton, 903 P.2d 1049, 1052 (Alaska 1995).
The Paytons do not contend that there are disputed issues of
material fact that preclude summary judgment. Instead, they assert
that the Board's December 1988 written findings, which were
incorporated into the 1992 decision, demonstrate that the Board
misinterpreted 5 AAC 99.010. We review the Board's interpretation
of its own regulation under the "reasonable basis"standard. Rose
v. Commercial Fisheries Entry Comm'n, 647 P.2d 154, 161 (Alaska
1982)("[W]here an agency interprets its own regulation . . . a
deferential standard of review properly recognizes that the agency
is best able to discern its intent in promulgating the regulation
at issue."). However, insofar as our review requires us to
determine the meaning of "customary and traditional"in AS
16.05.258, we exercise our independent judgment. Madison v. Alaska
Dep't of Fish & Game, 696 P.2d 168, 173 (Alaska 1985).
The Paytons also allege that the Board's written findings
demonstrate that the Board erred when it applied 5 AAC 99.010 to
the facts of their case. Faced with a similar question in Rose, we
held that once the interpretation of the applicable regulation is
resolved, "the [agency's] application of the 'law' to the
particular factual circumstances . . . is a matter committed to the
[agency's] sound discretion. Consequently, 'our scope of review is
limited to whether the decision was arbitrary, unreasonable or an
abuse of discretion.'" 647 P.2d at 161 (quoting State, Dep't of
Admin. v. Bowers Office Prods., Inc., 621 P.2d 11, 13 (Alaska
1980)).
IV. DISCUSSION
A. The Paytons' Appeal Is Not Moot.
The State asserts that the Paytons' appeal is moot
because on February 27, 1996, the Board conducted additional
proceedings relating to whether current uses of upper Yentna River
area salmon are customary and traditional. During those
proceedings, the Board considered a fourth proposal by the Paytons
for a subsistence fishery near Skwentna. Although it rejected the
proposal, the Board created a new personal use fishery in the area.
The State argues that the 1996 action, which the Paytons
have not included in their appeal, "supersede[s]"the 1992 decision
that the Paytons challenge: "[i]f this Court were to invalidate or
remand the Board's 1988 and 1992 findings, it would be unclear what
effect, if any, such a result would have on the 1996 findings
because they have not been put at issue."
We will not decide questions where the facts have
rendered the legal issues moot. O'Callaghan v. State, 920 P.2d
1387, 1388 (Alaska 1996). "A case is moot if the party bringing
the action would not be entitled to any relief even if they
prevail." Id. (quoting Maynard v. State Farm Mut. Auto. Ins. Co.,
902 P.2d 1328, 1329 n.2 (Alaska 1995)).
We conclude that this case is not moot. Although the
1996 decision created a personal use fishery, "personal use
fishing"is not a "subsistence use"and, thus, is not entitled to
the subsistence preference that the Paytons seek in this action.
Compare AS 16.05.940(24) with AS 16.05.940(32). Moreover, the
Board based its 1996 decision solely upon its 1988 written
findings, which were also the basis for the 1992 decision. Thus,
the Board did not decline to create a subsistence fishery in 1996
for any reason not already incorporated into the 1992 decision.
Under these circumstances, the 1996 decision does not, as the State
suggests, provide the Board with a sound basis to deny the Paytons'
requested relief even if they prevail in this action.
B. The Board Erred When It Denied the Paytons' 1992 Proposal
for a Subsistence Fishery.
1. The Board erroneously required a familial
relationship between current and past generations of users of upper
Yentna River area salmon.
The Paytons argue that the Board declined to find that
current uses of upper Yentna River area salmon are customary and
traditional because it improperly construed 5 AAC 99.010 to require
successive generations of related individuals to have used the
salmon. They contend that the Board "engrafted onto the law"
"successive generations"and "kinship"requirements that are
inconsistent with the language of 5 AAC 99.010(b) and the meaning
of "customary and traditional"in AS 16.05.258. The State responds
that subsistence laws protect only "ongoing, historical uses"and
that its references in its 1988 written findings to the dearth of
successive generations in the upper Yentna River area indicated
that uses of salmon in the area were neither ongoing nor
historical.
We conclude that the Board did not err in considering the
presence of "successive generations,"but that it did err when it
required the current users of salmon to be related to past
generations of users. In its 1988 written findings, which were
incorporated into the 1992 decision, the Board referred to the lack
of multigenerational families in the upper Yentna River area in its
discussion of criteria one, five, six, seven, and eight. Indeed,
the absence of multiple generations appears to be the principal
reason that the Board declined to create a subsistence fishery. In
the summary of its decision, the Board stated:
[W]hile it is certainly true that the
residents of this area fish . . ., these characteristics are the
result of a desire to move to a remote area and establish this type
of life style rather than the continuation of a life style that has
existed in a stable population of multigenerational families with
a history of subsistence uses in the area. The board believes that
the current subsistence law was designed to protect ongoing uses of
fish and fishing practices--practices that existed in the the [sic]
distant past and have been carried on through successive
generations . . . .
Despite repeated legal challenges to and multiple
revisions of the subsistence laws, "subsistence uses"have long
been defined in terms of "customary and traditional uses." Compare
Madison v. Alaska Dep't of Fish & Game, 696 P.2d 168, 170 n.4
(Alaska 1985) with AS 16.05.940(32). Accordingly, we consistently
have interpreted "customary and traditional"to refer to "uses"
rather than "users." State v. Morry, 836 P.2d 358, 368 (Alaska
1992); McDowell v. State, 785 P.2d 1, 9 n.19 (Alaska 1989);
Madison, 696 P.2d at 174.
We disagree with the Paytons that our interpretation of
"customary and traditional"prohibits the Board from considering
how successive generations of Skwentna-area residents used salmon.
The statutory definition of "customary and traditional"refers to
"long-term"and "consistent"uses of fish. AS 16.05.940(7). As
the State points out, "customary"means "commonly practiced, used,
or observed"or "familiar through long use or acquaintance."
Webster's New International Dictionary 559 (3d ed. 1969). And one
meaning of "traditional"is "handed down from age to age without
writing." Id. at 2422. Thus, the Board was charged with
determining whether users of salmon in the upper Yentna River area
currently practice methods of catching, preparing, and sharing
salmon that were "handed down from age to age." Such an inquiry
demands that the Board investigate the activities of current and
long-time residents of the area. Insofar as the Board made this
inquiry in its written findings, it did not err.
However, the Board went further than simply determining
whether current residents had learned subsistence traditions from
prior generations of persons who had used upper Yentna River salmon
for subsistence: it required a familial relationship between
current residents and those prior generations. This is evident
from the Board's reference to "multigenerational families"in its
summary of its 1988 findings, as well as from its findings relating
to specific criteria. For example, in examining criterion six, the
Board noted that "there was also no information to indicate that
current area residents developed use patterns based on knowledge of
fishing skills, values, and lore which was handed down from
generation to generation since the families in the area have not
been in the area for successive generations." Similarly, with
respect to criterion seven, the Board concluded that the "people in
the area . . . do not appear to have developed a systematic pattern
of sharing based on kinship ties of historical practices."
Finally, the Board's findings for criteria one and eight indicate
that current residents of the upper Yentna River area were not
adequately relying on salmon because they had "no long term
consistent pattern of ties to the area"and were not perpetuating
a "long-term use pattern"because their households were "newly
established."
The plain language of AS 16.05.258(a) and AS 16.05.940(7)
and our prior decisions emphasize that "customary and traditional"
refers to "uses"and "use patterns"of fish stocks. None of these
authorities indicates that a use of fish may be customary and
traditional only if current users are related by blood to past
generations who used the fish in essentially the same way.
Instead, the focus is whether the use has occurred consistently for
an extended period of time.
This interpretation is consistent with the legislative
history of the 1992 amendments to the subsistence laws. Section 1
of chapter 1, Second Special Session Laws Amended (SSSLA) 1992
contains legislative findings regarding the purpose and intent of
the 1992 subsistence revisions. In those findings, the legislature
stated that "customary and traditional uses of Alaska's fish and
game originated with Alaska Natives, and have been adopted and
supplemented by many non-Native Alaskans as well." Ch. 1, 
1(a)(3), SSSLA 1992. [Fn. 5] Because the legislature recognized
that customary and traditional uses can be "adopted"and
"supplemented,"the legislature apparently did not limit the
meaning of customary and traditional uses to only those uses that
are handed down from parent to child or relative to relative.
Therefore, we conclude that the Board's interpretation of
5 AAC 99.010(b) violated AS 16.05.258(a) because it erroneously
required current users of salmon in the upper Yentna River area to
be related to prior generations of users in the area rather than
focusing on whether the fish stocks "are customarily and
traditionally taken or used for subsistence." AS 16.05.258(a). By
construing the regulation the way it did, the Board inappropriately
restricted the Paytons' ability to establish a subsistence fishery.
[Fn. 6]
Moreover, this error cannot be characterized as harmless
error. The Paytons asserted that they and other residents of the
upper Yentna River area learned subsistence skills, values, and
lore from long-time, albeit unrelated, residents of the Skwentna
area. [Fn. 7] Plus, the Division of Subsistence uncovered evidence
that might support the Paytons' position. In 1992, the division
informed the Board that it possessed new "information from taped
interviews with Skwentna area residents regarding Criterion 6,
'intergenerational transmission of knowledge.'" Although the
division notified the Board that "this information can be
summarized orally if there are questions about it from Board
members,"the Board neither played the tapes nor asked questions
about them. Based upon these portions of the record and the
Board's interpretation of 5 AAC 99.010(b)(6), we conclude that the
Board erred when it denied the Paytons' Proposal 362.
2. The Board erred when it concluded that current
users of salmon in the upper Yentna River area do not handle,
prepare, preserve, and store salmon based on traditional practices.
Criterion five of 5 AAC 99.010(b) requires the Board to
identify customary and traditional uses of fish by considering
whether there exists "a means of handling, preparing, preserving,
and storing fish . . . that has been traditionally used by past
generations, but not excluding recent technological advances where
appropriate." 5 AAC 99.010(b)(5). The Board concluded that this
criterion weighed against the Paytons because residents of the
upper Yentna River area do not split and dry salmon as do residents
of the three recognized Native subsistence villages in the Cook
Inlet region.
We conclude that the Board's criterion five finding is
erroneous. The record indicates that historically the Alaska
Natives in the Skwentna area dried, smoked, and fermented salmon
and that "since that time in the 20's through the 50's and on"
residents dried, smoked, salted, canned, and jarred salmon.
Current methods are similar in that residents smoke, can, and jar
salmon; the only difference is that current residents freeze salmon
out-of-doors but do not dry it. However, criterion five
specifically permits residents to stop using certain methods based
upon "technological advances where appropriate." 5 AAC
99.010(b)(5). It was error for the Board not to explain why this
statutory exception does not justify Skwentna-area residents'
failure to dry salmon. Moreover, the taped interviews that the
Board failed to consider in 1992 may have some bearing on whether
the Paytons satisfy criterion five. [Fn. 8]
C. Related Determinations by the Joint Boards of Fisheries
and Game and the Board of Game Do Not Require the Board of
Fisheries to Accept Appellants' Proposal.
Finally, the Paytons assert that related determinations
by the Joint Boards of Fisheries and Game and the Board of Game
require the Board of Fisheries to establish a subsistence fishery
in the upper Yentna River area. The Paytons point out that the
Board of Game has recognized that the upper Yentna River area is
within a subsistence area for hunting. They also note that a few
days before the Board met to discuss the Paytons' Proposal 362, the
Joint Boards of Fisheries and Game excluded the upper Yentna River
area from a "nonsubsistence area"where that term is defined as "an
area or community where dependence upon subsistence is not a
principal characteristic of the economy, culture, and way of life."
AS 16.05.258(c).
We conclude that neither of these decisions impacts the
Board's 1992 decision concerning Proposal 362. As the State points
out, the Board of Fisheries and the Board of Game are separate
entities acting under different statutory authority; they may reach
different conclusions based on the same facts. Moreover, the Board
of Game's finding relates to a larger area than the finding by the
Board of Fisheries. See 5 AAC 92.450(16)(B). Therefore, the Board
of Game's decision does not limit the Board of Fisheries' finding
with respect to Proposal 362.
Similarly, the Joint Board of Fisheries and Game's
nonsubsistence area finding is consistent with the Board of
Fisheries' decision concerning Proposal 362. Exclusion of a
community from a nonsubsistence area does not necessarily mean that
the community is entitled to a subsistence preference. This is
apparent from the structure of AS 16.05.258. The "nonsubsistence
area"provisions in subsection (c) set forth procedures for
excluding areas from being considered for subsistence preferences.
However, decisions to grant subsistence rights are governed by
subsections (a) and (b). Thus, to determine that areas excluded
from "nonsubsistence areas"are automatically "subsistence areas"
would not be consistent with AS 16.05.258.
V. CONCLUSION
The Board erroneously required current users of salmon in
the upper Yentna River area to have a familial relationship with
prior generations of subsistence users in the area. We determine
that this interpretation of 5 AAC 99.010(b) is inconsistent with AS
16.05.258(a) and AS 16.05.940(7). We also conclude that the Board
failed to explain adequately why it determined 5 AAC 99.010(b)(5)
does not favor a finding that uses of upper Yentna River area
salmon are customary and traditional. Therefore, we REVERSE and
REMAND the superior court's decision with directions to remand the
matter to the Board. On remand, the Board should reevaluate the
Paytons' subsistence fishery Proposal 362 in a manner consistent
with this opinion, in light of the evidence in the record and the
taped interviews that it failed to review in 1992. In doing so, it
may allow the parties to present additional evidence. [Fn. 9]
FOOTNOTES
Footnote 1:
In 1988, the applicable subsistence statute required the Board
to "identify the fish stocks . . . or portions of stocks . . . that
are customarily and traditionally used for subsistence." Former AS
16.05.258(a) (1987).
Footnote 2:
That regulation provided in part:
(b) Customary and traditional subsistence uses
by rural Alaska residents will be identified by use of the
following criteria:
(1) a long-term, consistent pattern of use,
excluding interruption by circumstances beyond the user's control
such as regulatory prohibitions;
(2) a use pattern recurring in specific
seasons of each year;
(3) a use pattern consisting of methods and
means of harvest which are characterized by efficiency and economy
of effort and cost, and conditioned by local circumstances;
(4) the consistent harvest and use of fish or
game which is near, or reasonably accessible
from, the user's residence;
(5) the means of handling, preparing,
preserving, and storing fish or game which has been traditionally
used by past generations, but not excluding recent technological
advances where appropriate;
(6) a use pattern which includes the handing
down of knowledge of fishing or hunting skills, values and lore
from generation to generation;
(7) a use pattern in which the hunting or
fishing effort or the products of that effort are distributed or
shared among others within a definable community of persons,
including customary trade, barter, sharing, and gift-giving;
customary trade may include limited exchanges for cash, but does
not include significant commercial enterprises; a community may
include specific villages or towns, with a historical preponderance
of subsistence users, and encompasses individuals, families, or
groups who in fact meet the criteria described in this subsection;
and
(8) a use pattern which includes reliance for
subsistence purposes upon a wide diversity of the fish and game
resources of an area, and which provides substantial economic,
cultural, social, and nutritional elements of the subsistence
user's life.
5 Alaska Administrative Code (AAC) 99.010(b)(1982). The current
version of this regulation reflects several amendments. See 5 AAC
99.010.
Footnote 3:
One member stated that "unless some of the things that other
Board members come up with here now can get me onto a different
train of thought or somehow change my mind, I'm going to support
the motion to declare that they do have long term historical use."
Something must have changed this member's mind, because he voted
against the motion.
Footnote 4:
McDowell invalidated language in the 1986 subsistence
legislation that made subsistence preferences available only to
residents domiciled in a rural area of the state. McDowell, 785
P.2d at 12. We determined that this significant change in the law
made it impossible to review the Paytons' appeal in a meaningful
way.
Footnote 5:
The legislature's findings also provide:
(1) there are Alaskans, both Native and
non-Native, who have a traditional, social, or cultural
relationship to and dependence upon the wild renewable resources
produced by Alaska's land and water; the harvest and use of fish
and game for personal and group consumption is an integral part of
those relationships;
(2) although customs, traditions, and
beliefs vary, these Alaskans share ideals of respect for nature,
the importance of using resources wisely, and the value and dignity
of a way of life in which they use Alaska's fish and game for a
substantial portion of their sustenance; this way of life is
recognized as "subsistence"[.]
Ch. 1,  1(a)(1)-(2), SSSLA 1992.
Footnote 6:
AS 16.05.940(32) limits "subsistence uses"to uses for "direct
personal or family consumption . . . and for customary trade,
barter, or sharing for personal or family consumption." The State
notes the similarity between this language and that of 5 AAC
99.010(b)(7), which requires the Board to identify customary and
traditional uses of resources after considering the possible
existence of "a pattern of taking, use, and reliance where the
harvest effort or products of that harvest are distributed or
shared, including customary trade, barter, and gift-giving." Based
upon this similarity, the State asserts that it was appropriate for
the Board to conclude that Skwentna-area residents do not have "a
systematic pattern of sharing based on kinship ties of historical
practices."
However, similarities between AS 16.05.940(32) and 5 AAC
99.010(b)(7) should not be construed to permit the Board to require
a familial relationship between current and prior generations of
users of upper Yentna River area salmon. The regulation does not
refer to "kinship." See 5 AAC 99.010(b)(7). And, if we
interpreted the statute to mean that sharing must occur with family
members only, the phrase "for direct personal or family
consumption"in AS 16.05.940(32) would take on the same meaning as
the words "sharing for personal or family consumption." We decline
to interpret AS 16.05.940 in this manner. See Alascom, Inc. v.
North Slope Borough, Bd. of Equalization, 659 P.2d 1175, 1178 n.5
(Alaska 1983) (concluding that statutes should be construed so that
no part will be superfluous).
Footnote 7:
The only record evidence of this intergenerational
transmission of knowledge is in two affidavits attached to the
Paytons' 1992 proposal for a subsistence fishery. In the first,
Tom Payton stated that he was "given the knowledge of the customs
and traditions of the subsistence uses of fish . . ., the skills,
and the values and lore of the Skwentna area by residents who have
passed such knowledge down from previous generations." In the
other affidavit, Annabelle Shellabarger, who had lived in Skwentna
for over sixty-two years before her death, stated that she learned
subsistence fishing methods that were "customary and traditional of
the residents of this area at such time that I moved here." She
also stated, "I have handed down knowledge of fishing . . . skills,
and values and lore to my family, Tom and Dianne Payton, and to
other residents of Skwentna in the same manner and respect that
such knowledge was handed down to me from numerous old-time
residents of the Skwentna area."
Footnote 8:
The Paytons also challenge the Board's finding concerning
criteria three and four. The finding relating to criterion three
provides:
(3) although the gear used in the early part
of this century and later during the 1950's could be characterized
as efficient and cost effective (traps, weirs, fishwheels and set
gill nets), current gear has been dictated by regulation and since
statehood, rod and reel fishing under sport fishing regulations has
been the only legal means for taking salmon in this region[.]
The Board erred in basing its finding upon upper Yentna
River area residents' failure to use "methods and means"of
harvesting fish that are prohibited by regulation. Criterion one
prohibits the Board from finding that a "long-term consistent
pattern"of taking does not exist simply because regulations have
prohibited such a pattern from continuing. See 5 AAC 99.010(b)(1).
"It is fundamental that legislation should be construed so as to
harmonize its various elements without doing violence to its
language or spirit." Hartford Fire Ins. Co. v. Macri, 842 P.2d
112, 116 (Cal. 1992). Following this principle, the Paytons should
not be faulted under criterion three for failing to use "methods
and means"that are prohibited by regulation.
As to criterion four, the Board found:
(4) evidence before the board indicated that
people in this area probably do take fish and game that are
reasonably accessible from their homes and do not regularly travel
to other parts of Alaska [to] fish for salmon or hunt. However,
this is also [the] case for the majority of Alaskans[.]
The Paytons assert that the Board inappropriately minimized the
weight it gave to this criterion. It is within the discretion of
the Board to give each of the eight criteria appropriate weight,
but it must do so in a reasonable manner. See Rose v. Commercial
Fisheries Entry Comm'n, 647 P.2d 154, 161 (Alaska 1982) (applying
a deferential standard of review when an agency interprets its own
regulation). The record contains no evidence that supports the
Board's statement about "the majority of Alaskans." Nor is it
clear why that statement, even if true, merits discounting the
importance of criterion four relative to the other criteria.
Therefore, we cannot determine whether the Board reasonably weighed
criterion four. On remand, the Board should provide reasons based
upon record evidence for the relative weight that it gives to its
findings concerning each of the eight criteria.
Footnote 9:
For example, insofar as the Board's mistaken understanding of
applicable law may have influenced the questions it posed
government witnesses, such as the Division of Subsistence, it may
need to question these witnesses again.
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