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Alaska v. Arnariak (6/27/97), 941 P 2d 154
Notice: This opinion is subject to 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, phone
(907) 264-0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
STATE OF ALASKA, )
) Supreme Court No. S-7097
) Court of Appeals
MARIE ARNARIAK, ) Nos. A-5397/5398
Respondent. ) Trial Court Nos.
______________________________) 3DI-93-429/3DI-93-427 Cr.
STATE OF ALASKA, )
Petitioner, ) O P I N I O N
v. ) [No. 4844 - June 27, 1997]
ADAM ARNARIAK, )
Petition for Hearing from the Court of Appeals
of the State of Alaska, on Appeal from the District Court of the
State of Alaska, Third Judicial District, Dillingham, Milton M.
Appearances: Kevin M. Saxby, Assistant
Attorney General, Anchorage, Bruce M. Botelho, Attorney General,
Juneau, for Petitioner. Frederick Torrisi, Dillingham, for
Respondent Marie Arnariak. David B. Snyder, Assistant Public
Defender, Dillingham, John B. Salemi, Public Defender, Anchorage,
for Respondent Adam Arnariak.
Before: Compton, Chief Justice, Rabinowitz,
Matthews, Eastaugh, Justices, and Shortell, Justice pro tem.
COMPTON, Chief Justice, concurring.
RABINOWITZ, Justice, concurring.
SHORTELL, Justice pro tem, dissenting.
Round Island is an island owned by the State of Alaska
and located in Bristol Bay. It is part of the Walrus Islands State
Game Sanctuary which was established in 1960. AS 16.20.092. No
one may enter Round Island without a permit; hunting and the
discharge of firearms are prohibited. [Fn. 1] 5 AAC 92.066 (1995);
5 AAC 92.510(a)(13) (1995).
Adam and Marie Arnariak have been charged with entering
Round Island without a permit and Adam has been charged with the
unlawful discharge of a firearm on the island. See State v.
Arnariak, 893 P.2d 1273, 1274 (Alaska App. 1995). All charges are
violations of 5 AAC 92.066.
The Arnariaks moved for the dismissal of these charges,
arguing that the regulation on which they are based was preempted
by the federal Marine Mammal Protection Act (MMPA), 16 U.S.C.
1361-1407. Id. The MMPA prohibits the taking of marine mammals
and provides that "[n]o State may enforce, or attempt to enforce,
any State law or regulation relating to the taking of any species
. . . of marine mammal within the State." 16 U.S.C. sec. 1379(a).
The MMPA exempts certain Alaska Natives from the act when they
harvest marine mammals for certain purposes. 16 U.S.C. sec.
("[T]he provisions of this chapter shall not apply with respect to
the taking of any marine mammal by any Indian, Aleut, or Eskimo who
resides in Alaska and who dwells on the coast of the North Pacific
Ocean or the Arctic Ocean if such taking -- (1) is for subsistence
purposes; or (2) is done for purposes of creating and selling
authentic native articles of handicrafts and clothing . . . .").
The district court granted the Arnariaks' motion to
dismiss. The court of appeals affirmed. Arnariak, 893 P.2d at
1277. We granted the State's petition for hearing and now reverse.
In order to conclude that MMPA preempts the regulations
which prohibit entry onto Round Island without a permit and
prohibit the discharge of firearms on Round Island, it would be
necessary to accept the conclusion that Congress, by enacting
section 1379(a), intended to preclude the State from barring entry
onto state property and from barring the discharge of firearms on
state property. In our view, such a conclusion is unwarranted.
The State has the right to exclude entry onto its
property and the right to prohibit certain activities from being
conducted thereon. State property is protected from federal
takings under the Fifth Amendment to the United States Constitution
just as private property is. United States v. 50 Acres of Land,
469 U.S. 24, 31 (1984); Adderley v. Florida, 385 U.S. 39, 47
(1966); California v. United States, 395 F.2d 261, 263-64 (9th Cir.
1968). A governmental attempt to require public access to private
property is unconstitutional and invalid unless the government
first follows the condemnation process and pays just compensation.
Nollan v. California Coastal Comm'n, 483 U.S. 825, 831-32 (1987) (A
permanent physical occupation will be deemed to have occurred
"where individuals are given a permanent and continuous right to
pass to and fro, so that the real property may continuously be
traversed, even though no particular individual is permitted to
station himself permanently upon the premises."); Kaiser Aetna v.
United States, 444 U.S. 164, 179-80 (1979) ("In this case, we hold
that the 'right to exclude,' so universally held to be a
fundamental element of the property right, falls within this
category of interests that the Government cannot take without
compensation."); Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415-
16 (1922). [Fn. 2] It follows that section 1379(a) would be
unconstitu-tional were it interpreted to require the State to
permit access to and the discharge of firearms on Walrus Island.
Statutes should be construed in a manner which avoids a
substantial risk of unconstitutionality, where such a construction
is reasonable. Concrete Pipe and Products, Inc. v. Construction
Laborers Pension Trust, __ U.S. __, 113 S. Ct. 2264, 2282-83
(1993); Kenai Peninsula Borough v. Cook Inlet Region, Inc., 807
P.2d 487, 498 (Alaska 1991). We follow this precept in this case
and interpret section 1379(a) not to preclude the State from
restricting access to or from prohibiting the discharge of firearms
on state land. The language of section 1379(a) will reasonably
bear this interpretation. It preempts regulations "relating to the
taking"of marine mammals. Whether the phrase "relating to the
taking"extends to regulations protecting marine mammals on state-
owned land is a question which cannot be conclusively answered
merely by reference to the language of section 1379(a).
The legislative history of MMPA, however, does give an
authoritative answer to this question. The report of the Committee
on Merchant Marine and Fisheries of the House of Representatives
concerning MMPA makes clear that the act was not intended to
interfere with state sanctuaries which protect marine mammals. The
report states: "It is not the intention of this Committee to
foreclose effective state programs and protective measures such as
sanctuaries . . . ." H.R. Rep. No. 92-707, at 28 (1971), reprinted
in 1972 U.S.C.C.A.N. 4144, 4161 (emphasis added). [Fn. 3]
The MMPA is designed to protect marine mammals "to the
greatest extent feasible." 16 U.S.C. sec. 1361. "The purpose of
legislation is to prohibit the harassing, catching and killing of
marine animals . . . ." H.R. Rep. No. 92-707, at 11 (1971),
reprinted in 1972 U.S.C.C.A.N. 4144, 4144. [Fn. 4] The text of the
act identifies as its "major objective"the prevention of stocks of
marine mammals from diminishing "beyond the point at which they
cease to be a significant functioning element in the ecosystem of
which they are a part . . . ." 16 U.S.C. sec. 1361(2). The act
recognizes the need "to protect essential habitats, including the
rookeries, mating grounds, and areas of similar significance for
each species of marine mammal from the adverse effect of man's
actions . . . ." Id. In view of these expressions of purpose, it
is difficult to believe that Congress also intended a meaning which
would preclude the State from continuing to maintain a walrus
sanctuary on state-owned islands which had previously been
recognized as "the sole remaining place in the state where walruses
annually haul out on land"because "all similar 'hauling grounds'
. . . have been abandoned by walruses due to excessive molestation
and slaughter . . . ." AS 16.20.090(a)(1).
We are aware that Congress's use of the phrase "relating
to"in an express preemption clause has been held to suggest a
broad scale preemption. Morales v. Trans World Airlines, Inc., 504
U.S. 374, 383 (1992); Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41,
47 (1987). See also American Airlines, Inc. v. Wolens, 513 U.S.
219 (1995). However, this, at most, is merely one guide to the
meaning or intended scope of an enactment; it does not necessarily
control where there is evidence that another meaning was intended,
or where other rules of construction are also applicable. Here the
legislative history, the purpose of MMPA, and the rule that
statutes should be construed to avoid an unconstitutional result
persuasively indicate that MMPA's preemption is not so broad as to
prevent the State from limiting access to, or the discharge of
firearms on, state wildlife refuges.
There is, in addition, another rule of construction which
supports our conclusion. This is the presumption against finding
federal preemption in areas traditionally regulated by the states.
In Totemoff v. State, 905 P.2d 954, 966 (Alaska 1995), we noted:
The clear statement doctrine "counsels that a
. . . court should not apply a federal statute to an area of
traditional state concern unless Congress has articulated its
desire in clear and definite language to alter the delicate balance
between state and federal power by application of the statute to
(Quoting H.J. Inc. v. Northwestern Bell Tel. Co., 954 F.2d 485, 495
n.6 (8th Cir. 1972). The regulation of state lands is a
traditional state function. See EEOC v. Wyoming, 460 U.S. 226, 239
(1983) ("The management of state parks is clearly a traditional
state function . . . ."). Congress has not manifested in the MMPA
in clear and definite language a desire to displace the State's
ability to ban certain activities in state wildlife sanctuaries.
For the above reasons we conclude that the MMPA does not
preclude the State from limiting access to, or the discharge of
firearms on, Round Island. The opinion of the court of appeals is
REVERSED and this case is REMANDED with directions to reverse the
decision of the district court and to remand this case to the
district court for further proceedings.COMPTON, Chief Justice, concurring.
I agree that 16 U.S.C. sec. 1379(a) does not preclude the
State from restricting access to or from prohibiting the discharge
of firearms on State land. In other words, the State has not been
preempted from acting because of the federal statute. On this
basis, I concur in the result.
I see no need for this court to address the issue of
whether were preemption found, section 1379(a) would be
unconstitutional as a taking without just compensation. I express
no opinion regarding that issue.
RABINOWITZ, Justice, concurring.
Although I agree with Justice Shortell's dissenting
conclusion that the Marine Mammal Protection Act preempts Alaska's
regulations which prohibit entry onto Round Island without a permit
and prohibit the discharge of firearms on Round Island, I concur in
the result reached by the court. By preventing the State of Alaska
from excluding hunters from its property, the Act effects an
uncompensated taking in violation of the Fifth Amendment of the
United States Constitution.
The Act evidences a clear intent to preempt the type of
state regulation at issue in this case. Section 1379(a) announces
that "[n]o State may enforce . . . any State law or regulation
relating to the taking of any species . . . of marine mammal." The
United States Supreme Court has indicated that such "relating to"
language in preemption clauses need not be read broadly. In
California Division of Labor Standards v. Dillingham Construction,
__ U.S. __, 136 L. Ed. 2d 791 (1997), the Court refused to displace
a state law on the basis of an identical provision. A separate
concurring opinion suggests that in practice, "relating to"
language only requires ordinary field and conflict preemption
analysis. Id. at 806 (Scalia, J., concurring).
Here, however, even an application of the established
preemption tests would require preemption of state regulations.
Alaska regulation 5 AAC 92.066(2)(D) prohibits the "discharge of
firearms, disturbance or harassment of wildlife, removal of
wildlife or parts of wildlife"on the Round Island sanctuary. The
regulation governs the taking of marine mammals, a field which the
Act is intended to occupy. In addition to its express preemption
provision, the Act creates a comprehensive regulatory system of the
sort that assumes an absence of competing rules. See sec.sec.
1371, 1373, 1374, 1381, and 1383. Therefore, a field preemption
would require the invalidation of the regulation under which the
Arnariaks were charged. See Silkwood v. Kerr-McGee Corp., 464 U.S.
238, 248 (1984) (citing Rice v. Santa Fe Elevator Corp., 331 U.S.
218, 230 (1947)).
The court's opinion and the dissent quote contradictory
legislative history as to the intended effect of the Act. In my
opinion the most revealing history is found in the House of
Representative's section-by-section analysis of the original bill.
The report directs:
If the U.S. activities are impaired by reason
of a failure to own the necessary lands or
interests therein, the Secretary must there-
upon suspend the program and notify the
Congress, recommending such additional legis-
lation is [sic] deemed necessary.
H.R. Rep. No. 92-707, at 29 (1971), reprinted in 1972 U.S.C.C.A.N.
This passage indicates Congress was aware of the Act's
possible constitutional infirmity. Unsure of whether the proposed
legislation would run afoul of Fifth Amendment property rights,
Congress apparently chose to move forward and let the issue be
resolved in the courts. The question we are faced with in this
case is not whether the Act was intended to apply to land owned by
others; rather, it is whether such an extension constitutes an
I agree with the court that a federal denial of the
state's right to exclude hunters from its game sanctuary would be
a taking. Since section 1379(a) requires the State of Alaska to
permit access to and the discharge of firearms on Round Island
without compensation, I conclude that the Act is unconstitutional.
The United States Supreme Court has rejected takings
challenges to laws that require owners who open their land to the
public to admit other private persons. See e.g., Heart of Atlanta
Motel, Inc. v. United States, 379 U.S. 241, 258-61 (1964)
(rejecting takings challenge to Title II of 1964 Civil Rights Act).
With one exception, though, the Supreme Court has only sustained
requirements of admission for persons who enter with the same
purpose for which the owner admits other members of the public.
The cases have all involved prohibitions on discrimination among
entrants. They do not suggest a landowner may be made to suffer an
entry such as that made by the Arnariaks, whose entry was unrelated
to the state's reasons for opening its property.
The one exception to this rule is PruneYard Shopping
Center v. Robins, 447 U.S. 74 (1980). There the Supreme Court held
that a state may force private shopping malls to allow pamphleteers
to operate on their premises. Although the mall at issue was open
only "for the purpose of encouraging the patronizing of its
commercial establishments,"and it did not allow expressive
activity, the Court found the access requirement did not constitute
a taking. Id. at 77.
As this court's opinion points out, entry was allowed in
PruneYard under a set of conditions that distinguish the present
case. Slip Op. at 4-5 n.2. The most important condition was that
the shopping mall was allowed to impose its own time, place, and
manner restrictions, to guarantee that the entry did not interfere
with its land use objectives. PruneYard, 447 U.S. at 83-84.
This condition is critical. The Arnariaks contend that
Native hunting does not interfere with species preservation, and
that federal regulation will meet the state's objectives. However,
even under PruneYard, the State retains the right to determine for
itself when, where, and how hunting may be conducted. As the
landowner, it may act on its own to ensure that subsistence taking
will not interfere with its preservationist goals. Furthermore,
since the state may regulate "place,"it may bar hunting in some
places. Just as the mall owners in PruneYard were able to restrict
pamphleteers to common areas, so too should Alaska be allowed to
keep hunters out of its game sanctuaries. [Fn. 1]
In short, I conclude that the Marine Mammal Protection
Act preempts the State of Alaska hunting regulations under which
the Arnariaks were charged. Although statutes and regulations must
be construed when possible to avoid constitutional infirmity,
"[h]ere the intention of the Congress is revealed too distinctly to
permit us to ignore it because of mere misgivings as to power."
Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 478 (1957)
(Frankfurter, J., dissenting) (quoting Hopkins Federal Sav. & Loan
Ass'n v. Cleary, 296 U.S. 315, 335 (1935)). However, I further
conclude that as such, the Marine Mammal Protection Act violates
the Fifth Amendment of the United States Constitution. Even under
a liberal reading of the Supreme Court's takings cases, the fact
that Alaska permits tourists to enter Round Island to shoot
pictures does not allow Congress to require Alaska to permit others
to enter to shoot walrus.
SHORTELL, Justice pro tem, dissenting.
I dissent from the court's decision because I do not
agree that a broad reading of the MMPA's preemption clause would
frustrate the act's purpose and be contrary to Congress's intent.
Op. at 8. The MMPA's preemption clause prohibits Alaska from
enforcing any state law or regulation "relating to"the taking of
walruses. [Fn. 1] 16 U.S.C. sec. 1379(a). By referring to the
legislative history, the court interprets "relating to"narrowly
and concludes that the MMPA does not preempt Alaska regulations
aimed at protecting marine mammals. Op. at 6-8. The court also
discards a line of cases in which the United States Supreme Court
consistently has interpreted the words "relating to"in preemption
clauses to "express a broad pre-emptive purpose." Morales v. Trans
World Airlines, Inc., 504 U.S. 374, 383 (1992). I do not agree
that the MMPA's legislative history provides an authoritative basis
for deviating from this well-established rule of construction. Nor
do I agree that the "clear statement doctrine"requires a narrow
interpretation of "relating to." Thus, I would affirm the court of
appeals' decision by interpreting "relating to"broadly and
concluding that the MMPA preempts all Alaska regulations "relating
to the taking of"walruses, even if those regulations protect
A. The Structure and Legislative History of the MMPA Mandate
a Broad Interpretation of "Relating to"in sec. 1379.
To conclude that preempting Alaska's walrus sanctuary
regulations would be contrary to Congress's intent, the court
assumes that the overriding purpose of the MMPA is to protect
marine mammals. Op. at 6-8. Certainly, marine mammal protection
is the "major objective"of the act. 16 U.S.C. sec. 1361(2).
However, protection was not Congress's exclusive objective.
Instead, the MMPA's structure and legislative history indicate that
several objectives concerned Congress when it enacted the MMPA.
For example, Congress structured the act to provide a balance
between protecting marine mammals and addressing the needs of
Alaska Natives by imposing a moratorium on taking marine mammals,
but providing a limited exemption from the moratorium for Alaska
Natives. See 16 U.S.C. sec. 1371(a)-(b).
The MMPA's legislative history reflects this balance.
The preamble to the report accompanying the House bill that became
the MMPA states that the bill was drafted "to protect marine
mammals; to establish a Marine Mammal Commission; and for other
purposes." H.R. Rep. No. 92-707 (1971), reprinted in 1972
U.S.C.C.A.N. 4144, 4144 [hereinafter H.R. Rep.] (emphasis added).
That report further elucidates the variety of concerns motivating
the bill by outlining the "concepts"addressed by the bill's
provisions. Id. at 4151. On the one hand, the report recognizes
the protective functions of the bill: "Before any marine mammal may
be taken, the appropriate Secretary must first establish general
limitations on the taking, and must issue a permit which would
allow that taking." Id. On the other hand, "[t]he bill
establishes reasonable protection for Alaskan natives taking marine
mammals for purposes of food or clothing, where the primary purpose
is not commercial sale." Id.
No portion of the act or its legislative history suggests
that Congress intended to permit Alaska to enforce regulations that
would upset this balance, even if those regulations provided strong
protections for marine mammals. Indeed, a narrow interpretation of
the MMPA's preemption clause would thwart specific provisions
included in sec. 1379(b)(1) of the MMPA to ensure that no state law
would frustrate any of the multiple objectives addressed in the
act. Section 1379(b)(1) sets forth several criteria that a state
must meet before gaining authority to enforce its laws relating to
the taking of walruses. Of those criteria, the very first requires
states to have developed "a program for the conservation and
management of [walruses] that . . . is consistent with the
purposes, policies, and goals of this chapter." 16 U.S.C. sec.
1379(b)(1)(A) (emphasis added). Under the court's ruling, a state
such as Alaska that has not attained management authority for
walruses could nevertheless enforce regulations that do not conform
to all of the MMPA's purposes, policies, and goals so long as those
regulations protect walruses. Congress surely could not have
intended to allow Alaska to make such an end run around the
requirements of sec. 1379(b)(1).
The legislative history upon which the court relies also
supports a broad reading of sec. 1379(a). The court points out
the House of Representatives report accompanying the bill that
later became the MMPA states: "There is no intention or desire
within the Committee to remove any incentive from the states to
carry out necessary research or to protect animals residing within
their jurisdictions." Op. at 6 n.3. However, that language does
not compel the interpretation of sec. 1379 espoused by the court.
the MMPA preempted Alaska's walrus sanctuary regulations, Alaska
would continue to have a strong, if not stronger, incentive to
enact laws that conform to the objectives of the MMPA. In fact,
only by enacting such laws could Alaska regain the power to manage
the marine mammals within its borders. See 16 U.S.C. sec. 1379(a)-
Moreover, the context of the sentence cited by the court
indicates that Congress intended to permit states to enforce their
laws so long as they do so in a way that is consistent with the
MMPA. The sentence the court cites appears immediately after a
sentence that provides: "The bill permits and indeed requires the
development of an extensive management program in the agencies
concerned, with full opportunity for cooperative federal-state
management programs designed to carry out the purposes and policies
of the act." H.R. Rep., supra p. 2, at 4151. Therefore, I
disagree with the majority's conclusion that this portion of the
legislative history suggests a congressional intent to allow Alaska
to enforce measures that ignore all but the protective functions of
The court also refers to a portion of the House report's
section-by-section analysis, which states that "[i]t is not the
intention of this Committee to foreclose effective state programs
and protective measures such as sanctuaries." Op. at 6. This part
of the section-by-section analysis relates to section 109 of the
House bill. H.R. Rep., supra p. 2, at 4161. However, Congress did
not enact the House's version of section 109. Conf. Rep. No. 92-
1488 (1971), reprinted in 1972 U.S.C.C.A.N. 4187, 4188. Instead,
a House and Senate conference committee modified the House's
version of section 109 to conform to amendments proposed by the
Senate. Id. Thus, the portion of the legislative history cited by
the court is of limited value in interpreting Congress's intent.
A more appropriate gauge of Congress's actual intent is
the legislative history discussing the conference committee's
version of section 109. The conference report explains:
The House bill preempted State law, but
allowed cooperative agreements with the States in harmony with the
purposes of the Act. The Senate amendment allowed the Secretary to
review State laws and to accept those that are consistent with the
policy and purpose of the Act. The conference substitute clarifies
the Senate version to assure that the Secretary's determination
will control as to whether or not the State laws are in compliance.
Once granted authority to implement its laws relating to marine
mammals, the State concerned may issue permits, handle enforcement,
and engage in research.
Id. at 4190. Thus, rather than supporting the court's
interpretation of sec. 1379(a), this portion of the legislative
history is consistent with the view that Congress intended to
preempt state laws that are inconsistent with the multiple policies
and objectives of the act.
Finally, the court refers to sec. 1361, which provides
the MMPA "is designed to protect marine mammals 'to the greatest
extent feasible.'" Op. at 6. However, this language is not
inconsistent with the view that Congress sought to protect marine
mammals while also addressing concerns it had about Alaska Natives.
Congress expressly qualified the protection it was willing to
provide marine mammals with the nebulous expression "to the
greatest extent feasible." 16 U.S.C. sec. 1361(6). Although
never explained when protection would not be "feasible,"the phrase
reasonably could be interpreted to mean that protecting marine
mammals is not "feasible"when such protection conflicts with
Congress's other concerns expressed in the MMPA. It is difficult
to imagine that by this one imprecise phrase Congress intended to
permit state laws that might frustrate one of the MMPA's
Thus, I conclude that the structure and legislative
history of the MMPA do not support the court's interpretation of
"relating to"in sec. 1379(a). Congress consistently indicated
that the MMPA would preempt state laws so that no law would upset
balance that Congress struck between competing interests. I cannot
agree with the court's narrow interpretation of "relating to"
because it would permit Alaska to protect marine mammals at the
expense of some of the other interests that Congress recognized
when it enacted the MMPA. [Fn. 2]
B. Under a Broad Interpretation of sec. 1379(a), 5 Alaska
Administrative Code (AAC) 92.066 Relates to the Taking of Walruses.
As sec. 1379(a) preempts state protective measures that
relate to the taking of walruses, the question becomes whether 5
AAC 92.066, the particular regulation under which the State charged
the Arnariaks, falls within the ambit of sec. 1379(a). The MMPA
defines "take"as "to harass, hunt, capture, or kill, or attempt to
harass, hunt, capture, or kill any marine mammal." 16 U.S.C. sec.
1362(12). It does not define "relating to." And, aside from the
court of appeals' decision in this case, no court has clarified the
meaning of "relating to"in sec. 1379(a). However, in examining
similar provisions in the Employee Retirement Income Security Act
(ERISA) and the Airline Deregulation Act (ADA), the United States
Supreme Court consistently has employed the broad, ordinary meaning
of the words: "to stand in some relation; to have bearing or
concern; to pertain; refer; to bring into association with or
connection with." Morales v. Trans World Airlines, Inc., 504 U.S.
374, 383-84 (1992) (quoting Black's Law Dictionary 1158 (5th ed.
1979)). [Fn. 3]
These authorities persuade me that the regulations at
issue in this case relate to the taking of walruses. Those
regulations are part of a regulatory structure intended to
establish and maintain a wildlife sanctuary on the Walrus Islands,
including Round Island. See 5 AAC 92.066. The State correctly
points out that "[s]hortly after statehood, Alaska's Legislature
created the sanctuary because it found that the Walrus Islands were
the sole remaining place in Alaska where walruses annually haul out
on land." See Ch. 115, sec. 1, SLA 1960. The regulations, thus,
protect the Round Island walruses by prohibiting hunting on Round
Island, establishing procedures to control access to the island,
and ensuring that visitors do nothing to compromise wildlife
habitats or otherwise disturb or harass wildlife present on the
island. See 5 AAC 92.066; 5 AAC 92.510(13).
The regulations at issue in this case relate to the
taking of walruses because they are part of this protective
statutory and regulatory structure. Indeed, the similarities
between the MMPA's definition of "take"and the actions prohibited
by 5 AAC 92.066 are striking because both prohibit persons from
harassing, killing, or removing walruses. Compare 5 AAC 92.066(2)
with 16 U.S.C. sec. 1362(12). And, the permit requirement and the
firearm restriction in 5 AAC 92.066 exist to protect walruses from
such activities. See 5 AAC 92.066. Therefore, I dissent from the
court's view that 5 AAC 92.066 is not a regulation "relating to the
taking of"walruses for preemption purposes.
C. The Takings Clause Does Not Require the Court's
Interpretation of sec. 1379(a).
I do not agree with the court that potential Takings
Clause issues compel an interpretation of sec. 1379(a) that would
permit the State to enforce 5 AAC 92.066. Op. at 8. I agree that
a taking in the constitutional sense might occur if the MMPA
limited the State's right to exclude others from its property to
the same extent as the government action in Nollan v. California
Coastal Comm'n, 483 U.S. 825 (1987). [Fn. 4] But I disagree that
sec. 1379(a) would create a "permanent physical occupation"in the
sense that the Court used that term in Nollan, 483 U.S. at 832, if
sec. 1379(a) were interpreted to preempt 5 AAC 92.066.
The State argues that "the Court of Appeals' construction
of the MMPA . . . compel[s] [the State] to suffer uncontrolled,
unwanted physical invasion of its property, without recourse."
This position makes no distinction between the State's power to
enforce the permit requirement in 5 AAC 92.066 and its general
power to prevent trespass. I disagree that these two powers are
All property owners possess a common law right to prevent
trespasses upon their land. See Brown Jug, Inc. v. International
Bhd. of Teamsters, Chauffeurs, Warehousemen & Helpers of America,
Local 959, 688 P.2d 932, 938 (Alaska 1984); Restatement (Second) of
Torts sec.sec. 163-65 (1965) (describing liability for intentional,
mistaken, reckless, and negligent trespass to land). The State's
power to enforce this right, of course, exists separately from the
State's power to prosecute violations of 5 AAC 99.066. Therefore,
the issue is whether sec. 1379(a) necessarily preempts the State's
general right to prevent trespass if, as I have concluded
previously, that provision preempts 5 AAC 92.066.
Although the United States Supreme Court has interpreted
preemption clauses like sec. 1379(a) broadly, it has recognized
to the reach of such clauses. [Fn. 5] See Ingersoll-Rand Co. v.
McClendon, 498 U.S. 133, 139 (1990) ("Notwithstanding its breadth,
we have recognized limits to ERISA's pre-emption clause."). For
example, in Mackey v. Lanier Collection Agency & Serv., 486 U.S.
825, 829, 831-38 (1988), the Court examined whether ERISA's
preemption clause, which supersedes all state laws that "relate to
any employee benefit plan,"preempted a state's general garnishment
statute that was applied to collect judgments against participants
in employee benefit plans. The Court noted that the garnishment
statute was generally applicable and did not refer to ERISA plans
of any kind. Id. at 831. It also reasoned that ERISA could not
preempt the garnishment statute without creating an unreasonable
result because preemption would mean that a party would have no way
to enforce a judgment that it might win in certain suits expressly
authorized by ERISA. Id. at 834. Therefore, it concluded that
ERISA did not preempt the garnishment statute. Id. at 841.
In this case, interpreting sec. 1379(a) to preempt the
State's general right to prevent trespass might very well create an
unreasonable result. If the State could not enforce that general
right, the Arnariaks might be able to take a walrus located in a
high security area or even a zoo, so long as the State owned the
land in question. Congress surely could not have intended such an
absurd result. See Norman J. Singer, 2A Sutherland Statutory
Construction sec. 46.07 (5th ed. 1991) (stating that statutes
be construed to avoid absurd results).
Thus, the MMPA cannot reasonably be interpreted to
prevent the State from using its general right to prevent trespass
to exclude persons from Round Island. Interpreted in this way,
1379(a) would not violate the Takings Clause. If sec. 1379(a) is
so broad as to supersede the State's ability to enforce its general
right to prevent trespass, the MMPA would not unconstitutionally
impinge on the State's right to exclude others from its property.
D. The "Clear Statement Doctrine"Does Not Require the
Court's Interpretation of sec. 1379(a).
Finally, I disagree that the "clear statement doctrine"
as articulated in Totemoff v. State, 905 P.2d 954 (Alaska 1995),
supports the court's interpretation of sec. 1379(a). In Totemoff,
this court determined whether the Alaska National Interest Lands
Conservation Act (ANILCA) deprived the State of criminal
jurisdiction over a hunter who, contrary to a state ban on hunting
with the aid of a spotlight, shot a deer on federal land from a
skiff located in navigable waters. Totemoff, 905 P.2d at 957-58.
This court noted that State jurisdiction could be "established
either by finding that the State has the power to apply the
spotlighting ban to subsistence hunters on federal land, or by
determining that the State has exclusive jurisdiction over the
navigable waters from which [the hunter] fired his rifle." Id.
In determining whether the State has the power to apply
the spotlighting ban on federal land, the court examined whether
ANILCA preempted the state hunting regulation. Id. at 958. It
noted that ANILCA does not contain an express preemption clause.
Id. at 959. Moreover, the court's opinion contains no discussion
of legislative history that refers to preemption of any nature,
suggesting that ANILCA's legislative history makes no such specific
mention. Indeed, the court recognized that ANILCA states: "Nothing
in this Act is intended to enlarge or diminish the responsibility
and authority of the State of Alaska for management of fish and
wildlife on the public lands except as may be provided in [Title
VIII] of this chapter." Id. at 959. Under these circumstances, it
is not surprising that the court found Congress had not expressed
a "clear and manifest"intent to create a federal regulatory scheme
"so pervasive that there would be no room for state regulation to
supplement it." Id.
As to whether the State had exclusive jurisdiction over
navigable waters, the court examined whether ANILCA gives the
federal government the power to regulate hunting in navigable
waters. Id. at 962. Because neither ANILCA nor its legislative
history apparently contained any express authority for resolving
this issue, the court resorted to determining whether federal
jurisdiction could be inferred from the language of ANILCA. Seeid. at 962-68.
Thus, the issue became whether ANILCA's definition of
"public lands"includes navigational servitudes and reserved water
rights belonging to the United States. Id. at 961-68. If it did,
ANILCA might have prevented the state from enforcing the
spotlighting law. Id. at 957-58, 961. The court noted that ANILCA
defined "land"as "lands, waters, and interests therein." Id. at
962. It concluded that the state law was not preempted for several
reasons, one of which was that use of the word "interests"in the
definition of "land"was not a sufficiently clear and definite
statement of Congress's intent to make the federal government
responsible for regulating hunting and fishing in Alaska's
navigable waters. Id. at 964.
Unlike ANILCA, the MMPA contains an express preemption
clause, and this clause is clarified by the MMPA's structure and
legislative history. As discussed in Part A, the preemption clause
in sec. 1379(a) works in conjunction with the criteria in sec.
for transferring authority to Alaska for managing walruses.
Specifically, subsection (a) preempts state laws and regulations
relating to walrus taking "unless the Secretary has transferred
authority for the conservation and management of [walruses] . . .
to the State under subsection (b)(1) of this section." 16 U.S.C.
sec. 1379(a). This relationship between subsection (a) and subsection
(b)(1) suggests that subsection (a) must preempt those types of
laws and regulations that would be inconsistent with the criteria
in subsection (b)(1). Otherwise, the criteria in subsection (b)(1)
would have little import. [Fn. 7]
Of particular importance to this case, the very first
criterion in subsection (b)(1) requires states to have developed "a
program for the conservation and management of [walruses] that . .
. is consistent with the purposes, policies, and goals of this
chapter." Id. sec. 1379(b)(1)(A) (emphasis added). As explained
Part A, the language, structure, and legislative history of the
MMPA demonstrate that Congress intended to preempt any state law
that relates to walrus taking and is inconsistent with the multiple
objectives of the act. Because Congress specifically indicated
that it balanced the need to protect mammals with the desire to
recognize Native subsistence needs, I conclude that Congress's
intent is sufficiently "clear and definite"to preempt the
regulation at issue in this case.
Guided by the MMPA's language and legislative history and
the United States Supreme Court's interpretation of preemption
clauses similar to the one at issue in this case, I would interpret
sec. 1379(a) to preempt 5 AAC 92.066 but to permit the State to
enforce its general right to prevent trespass. Thus, I would
affirm the court of appeals' decision.
The legislative findings and purpose of the Walrus Island
State Game Sanctuary are expressed in AS 16.20.090 as follows:
(a) The legislature recognizes that
(1) the Walrus Islands are the sole
remaining place in the state where walruses annually haul out on
land and all similar "hauling grounds"in the state which were
formerly utilized have been abandoned by walruses due to excessive
molestation and slaughter;
(2) the Walrus Islands are uninhabited,
and the walruses frequenting them are not required by the state for
(3) the Walrus Islands have great
importance as a retreat for the Pacific walrus from the standpoints
of conservation, scientific value, and tourist interest;
(4) the Department of Natural Resources
has taken appropriate action to achieve transfer of title in the
Walrus Islands to the state.
(b) The purpose of AS 16.20.090-
16.20.098 is to protect the walruses and other game on the Walrus
PruneYard Shopping Center v. Robbins, 447 U.S. 74 (1980), is
arguably contrary authority, but we think it is distinguishable for
the reasons that follow. PruneYard held that a state may require
a privately owned shopping center, open to the general public, to
permit individuals to exercise rights of free expression on the
shopping center's property. Round Island is not open to the
general public; access is limited to no more than 30 persons a day
and only between May 1 and September 1. The PruneYard Shopping
Center attracted 25,000 persons a day. Id. at 78. See, Nollan v.
California Coastal Comm'n, 483 U.S. 825, 832 n.1 (1987); Pacific
Gas & Elec. v. Public Util. Comm'n of California, 475 U.S. 1, 12
n.8 (1986) (plurality opinion). Unlike the pamphleteering in
PruneYard, unrestricted hunting conflicts with the State's goals in
maintaining the Round Island Sanctuary. Preventing the State from
"prohibiting this sort of activity will unreasonably impair the
value or use of [the] property as a [sanctuary]." PruneYard, 447
U.S. at 83. The MMPA would prohibit any State imposed restrictions
on walrus hunting on the property. The PruneYard decision
emphasized that the owner was not restricted from imposing
"reasonable time, place and manner restrictions to minimize
interference with the owner's commercial functions." Loretto v.
Teleprompter Manhattan CATV Corp., 458 U.S. 419, 434 (1982). See
also, Dolan v. City of Tigard, __ U.S. __, 114 S. Ct. 2309, 2321
(1994) ("Petitioner would lose all rights to regulate the time in
which the public entered onto the Greenway, regardless of any
interference it might pose with her retail store. Her right to
exclude would not be regulated, it would be eviscerated.").
Similarly, the report states: "There is no intention or
desire within the Committee to remove any incentive from the states
. . . to protect animals residing within their jurisdictions
. . . ." H.R. Rep. No. 92-707, at 18 (1971), reprinted in 1972
U.S.C.C.A.N. 4144, 4151.
As noted, the act exempted from its coverage subsistence
hunting by Alaska Natives. 16 U.S.C. sec. 1371(b). Logically,
exemption indicates a Congressional policy that MMPA not interfere
with marine mammal hunting by Alaska Natives. It is not a mandate
requiring land owners to open their land to such activities. The
legislative history of MMPA supports the view that "present levels
of taking"by Alaska Natives were to be protected, but the
expansion of hunting areas was not contemplated:
The House bill exempted Alaskan Indians,
Aleuts and Eskimos from the moratorium and the permit requirements
to the extent they take an animal for subsistence purposes, not
wastefully and not for direct or indirect commercial sale. The
Senate amendment extended the exemption to allow for the so-called
"cottage industries"of the Alaskan natives. The House bill would
prohibit the taking, by natives or anyone else, of animals
belonging to an endangered species, whereas the Senate amendment
would allow such animals to be taken by natives. The conferees
essentially adopted the provisions of the Senate amendment.
The conferees were aware of the
relatively small amount of solid data on the effects of native
taking of marine mammals, and given that lack of information were
not disposed unilaterally to terminate the present levels of taking
by Alaskan Indians, Aleuts and Natives of marine mammals, including
endangered species such as bowhead whales.
H.R. Conf. Rep. No. 92-1488, at 23 (1972) (emphasis added).
FOOTNOTES (Rabinowitz Concurrence)
Although PruneYard does not mention this as a basis for decision, it would appear that the
Supreme Court's holding was influenced by free speech concerns. In many suburban areas, private
shopping centers have displaced traditional fora for expressive activity. See id. at 90 (Marshall, J.,
concurring). PruneYard in effect allowed limited public duties to be imposed on a private entity that
had displaced public institutions. Cf. Marsh v. Alabama, 326 U.S. 501 (1946). The fact that the
Supreme Court has never allowed separate-purpose private entry elsewhere suggests that PruneYard's
exception to traditional limits on governmental power can be limited to such circumstances.
The preemption clause provides:
No State may enforce or attempt to enforce, any State law or
regulation relating to the taking of any species . . . of marine mammal within the State unless the
Secretary has transferred authority for the conservation and management of that species . . . to the
State under subsection (b)(1) of this section.
16 U.S.C. sec. 1379(a). The State does not dispute the court of appeals' conclusion that "[t]he
government has not transferred management authority for marine mammals to the State of Alaska."
State v. Arnariak, 893 P.2d 1273, 1275 (Alaska App. 1995).
In a footnote, the court refers to legislative history
concerning Alaska Native subsistence taking and concludes that
Congress intended to protect present levels of taking without
expanding hunting areas. Op. at 6-7 n.4. That portion of the
legislative history states that "[t]he conferencees were . . . not
disposed unilaterally to terminate the present levels of taking by
Alaskan Indians, Aleuts and Natives of marine mammals." Conf. Rep.
No. 92-1488 (1971), reprinted in 1972 U.S.C.C.A.N. 4187, 4188.
Just because Congress did not want to terminate "present levels"
does not necessarily mean Congress intended to bar any increase in
the level of Native subsistence taking. However, even if Congress
did have that intent, maintaining current levels of taking does not
require the size of hunting areas to stay the same. That is, the
size of hunting areas may fluctuate independently from levels of
In his concurring opinion, Justice Rabinowitz cites California Division of Labor Standards
Enforcement v. Dillingham Construction, N.A., 117 S. Ct. 832 (1997), for the proposition that
"relating to"need not be read broadly. In that case, the United States Supreme Court reaffirmed its
view that "relate to"in ERISA is "clearly expansive,"has a "broad scope,"and is "conspicuous for
its breadth." Dillingham, 117 S. Ct. at 837 (citations omitted).
In Nollan v. California Coastal Comm'n, 483 U.S. 825 (1987),
the Court noted that
where governmental action results in "[a]
permanent physical occupation"of the property, by the government
itself or by others, "our cases uniformly have found a taking to
the extent of the occupation, without regard to whether the action
achieves an important public benefit or has only minimal economic
impact on the owner."
Id. at 831-32 (quoting Loretto v. Teleprompter Manhattan CATV
Corp., 458 U.S. 419, 432-35 (1982) (citations omitted)). Then, it
a "permanent physical occupation"has
occurred, for purposes of that rule, where individuals are given a
permanent and continuous right to pass to and fro, so that the real
property may continuously be traversed, even though no particular
individual is permitted to station himself permanently upon the
Id. at 832.
The "relating to"language poses a difficult interpretational
issue because "as many a curbstone philosopher has observed,
everything is related to everything else." California Div. of
Labor Standards Enforcement v. Dillingham Constr., N.A., 117 S. Ct.
832, 843 (1997) (Scalia, J., concurring). The problem, therefore,
is to find a limit to language that appears, at first glance, to be
The general right to prevent trespass is distinguishable from
the walrus sanctuary regulations. The MMPA preempts "any state law
or regulation relating to the taking of"walruses. 16 U.S.C. sec.
1379(a). Based upon this language, the proper inquiry is whether
the law or regulation itself, rather than a reason for enforcing
it, relates to walrus taking. As discussed in Part B, the walrus
sanctuary regulations themselves relate to taking because they are
part of a regulatory structure specifically intended to establish
and maintain an area to protect Round Island walruses from the same
type of activities that the MMPA characterizes as "taking."
Because the general right to prevent trespass does not share these
features, it is critically different from the walrus sanctuary
This court has stated: "As a general rule, 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.'"Homer
Elec. Ass'n. v. Towsley, 841 P.2d 1042, 1045 (Alaska 1992) (quoting Alascom, Inc. v. North Slope
Borough, Bd. of Equalization, 659 P.2d 1175, 1178 n.5 (Alaska 1983)).