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Native Village of Elim v. State of Alaska (10/15/99) sp-5192
Native Village of Elim v. State of Alaska (10/15/99) sp-5192
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
NATIVE VILLAGE OF ELIM, NOME )
ESKIMO COMMUNITY, and ) Supreme Court No. S-8135
KAWERAK, INC., )
) Superior Court No.
Appellants, ) 2NO-92-80 CI
)
v. )
)
STATE OF ALASKA and FRANK ) O P I N I O N
RUE, in his official capacity )
as Commissioner of Fish ) [No. 5192 - October 15, 1999]
and Game, and PENINSULA )
MARKETING ASSOCIATION, )
)
Appellees. )
)
Appeal from the Superior Court of the State of
Alaska, Second Judicial District, Nome,
Richard H. Erlich, Judge.
Appearances: Heather R. Kendall-Miller,
Native American Rights Fund, Anchorage,
William E. Caldwell, Alaska Legal Services
Corporation, Fairbanks, and John Sky Starkey,
Bethel, for Appellants. Lance B. Nelson,
Assistant Attorney General, Anchorage, and
Bruce M. Botelho, Attorney General, Juneau,
for Appellees State of Alaska and Frank Rue.
Michael A.D. Stanley, Juneau, and Marc D.
Slonim, Ziontz, Chestnut, Varnell, Berley &
Slonim, Seattle, Washington, for Appellee
Peninsula Marketing Association.
Before: Matthews, Chief Justice, Eastaugh,
Fabe, and Bryner, Justices. [Carpeneti,
Justice, not participating.]
BRYNER, Justice.
The Native Village of Elim appeals a grant of summary
judgment in favor of the Alaska Board of Fisheries and Peninsula
Marketing Association. Elim argues that the Board violated its
duties under the sustained yield clause of the Alaska constitution
by failing to identify a specific yield of salmon to be sustained.
Elim also argues that the Board has violated its duty under the
state subsistence law to identify chum salmon in individual
communities of Norton Sound as separate subsistence stocks and to
apply the subsistence preference throughout the stocks' migratory
range. Finally, Elim argues that the Board's mixed stock policy is
invalid. These arguments implicate the scope of the Board's
discretion in its role as manager of Alaska's fisheries. We
conclude that the Board acted within the considerable discretion
afforded it by the sustained yield clause and the subsistence law,
and that the mixed stock policy is valid. Consequently, we affirm
the superior court's order.
I. FACTS AND PROCEEDINGS
The False Pass fishery commercially harvests salmon that
pass through the False Pass area of the South Alaska Peninsula and
the Aleutian Islands in June. Because the False Pass fishery
harvests various stocks in coastal waters before they have
segregated by river of origin, it is classified as a "mixed stock,"
or "interception" fishery.1 Although the False Pass fishery
primarily targets sockeye salmon, the harvest involves an
incidental catch of chum salmon that are migrating through the same
area. Chum salmon is a subsistence resource for the Native Village
of Elim and other communities in Norton Sound, an area several
hundred miles north of the False Pass fishery. The Native Village
of Elim, the Nome Eskimo Community, and Kawerak, Inc. (collectively
"Elim") contend that many of the chum intercepted in the False Pass
fishery are bound for Norton Sound. The Alaska Board of Fisheries
and the Peninsula Marketing Association2 (PMA) dispute Elim's
characterization of the effect of the incidental chum harvest in
the False Pass fishery on the chum returns in Norton Sound. This
case represents the third time that this court has considered
aspects of the decades-long conflict between these northern
subsistence interests and southern commercial interests.3
Since 1975 the Board of Fisheries has managed the False
Pass fishery under a plan that allots a specific percentage of the
projected northern catch of sockeye to the fishery. Following
large incidental harvests of chum salmon in 1982 and 1983, the
Board imposed "chum caps" directing the Alaska Department of Fish
and Game to close the False Pass fishery whenever the incidental
take of chum salmon reached the level set by the Board, even if the
fishery had not yet harvested its full sockeye allotment.4 In the
decades before and after the Board adopted these caps, the number
of chum salmon returning to northern Norton Sound dramatically
decreased. In response to this decline, the Board imposed various
regulatory measures in Norton Sound, including closing local
commercial and sport fisheries and severely restricting subsistence
fisheries.
In 1992 Elim sued the Board, alleging that the False Pass
fishery is the cause of the chum salmon decline. Elim argued that
Alaska's subsistence law requires the Board to restrict or
eliminate the False Pass fishery in order to preserve subsistence
use of chum in Norton Sound. PMA intervened on the Board's behalf.
The superior court denied Elim's request for a preliminary
injunction. In October 1992 the court remanded to the Board after
the Alaska legislature amended the subsistence law and enacted a
new law on mixed-stock fisheries.
Minimal northern chum returns in 1993 spawned a series of
legal and political battles between Elim, the Board, and PMA.5
Elim amended its 1992 complaint to include claims under the
sustained yield clause of the Alaska constitution and the mixed
stock policy law.6 Elim wanted the Board to adopt a lower chum cap
but the Board declined to do so.7 Consequently, in January 1995
Elim moved for partial summary judgment in the superior court on
its claim that the Board had failed to meet its legal obligations
under the 1992 remand order. The Board and PMA filed cross-motions
for summary judgment. The superior court granted Elim's motion in
part. Retaining jurisdiction, the court remanded to the Board for
further findings justifying its actions using either a
scientific/rational approach or a historical analysis.
After this second remand, the Board reviewed its
management plan for the False Pass fishery. The Board chose not to
reduce the chum cap, but directed the Department of Fish and Game
to manage the False Pass fishery under sustained yield principles.
The Board also delayed the fishery's opening day, eliminated the
chum "trigger" so that the chum protections would be implemented
from the beginning of the season, and provided that the fishery
would close during the last few days of June if the sockeye to chum
ratio was less than 2:1 during a specified time period. The Board
continued to restrict commercial, sport, and subsistence fishing in
Norton Sound. In 1997, after reviewing these actions, the superior
court granted summary judgment for the Board and PMA. Elim
appeals.
II. DISCUSSION
A. The Sustained Yield Clause of the Alaska Constitution
1. Standard of review
We review a lower court's decision to grant summary
judgment de novo.8 When we interpret the Alaska constitution and
pure issues of law, we substitute our judgment for that of the
Board.9 We interpret the constitution and Alaska law according to
reason, practicality, and common sense, taking into account the
plain meaning and purpose of the law as well as the intent of the
drafters.10
When we determine whether the Board properly applied the
law to a particular set of facts, we review the Board's action for
reasonableness.11 Under this standard, we "merely determine[]
whether the agency's determination is supported by the facts and is
reasonably based in law."12 This court will not substitute its
judgment for the Board's or alter the Board's policy choice when
the Board's decision is based on its expertise.13
2. The sustained yield clause is a broad principle of
management that does not require the Board to
determine a numerical yield for fisheries.
The sustained yield clause of the Alaska constitution
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 beneficial
uses.[14]
Elim contends that the Board failed to properly apply the
sustained yield clause in managing the False Pass fishery, arguing
that the sustained yield clause requires the Board to take three
distinct actions: first, identify the level of yield to be
sustained for each fish stock or population; second, identify
management principles necessary to sustain those levels of yield;
and third, consciously apply those principles "insofar as
practicable." The Board responds that the sustained yield clause
does not require a mathematically precise determination of
sustained yield. In the Board's view, its management plan for the
False Pass fishery, 5 Alaska Administrative Code (AAC) 09.365,
properly incorporates sustained yield principles.15
We agree with the Board that the sustained yield clause
does not require it to determine a specific level of yield for each
fish stock. The plain language of the provision requires resource
managers to apply sustained yield principles; it does not mandate
the use of a predetermined formula, quantitative or qualitative.
As a practical matter, the record suggests that to require the
Board to devise such a formula would consume an amount of time,
money, and energy wholly disproportionate to potential benefits.
Moreover, the record supports the Board's contention that the
exercise would be a counterproductive use of resources and would
limit the in-season flexibility that fisheries management requires.
We acknowledge that the framers of Alaska's constitution
intended the sustained yield clause to play a meaningful role in
resource management.16 But at the same time, they believed that
calculating a specific numerical yield for fisheries would be
impossible. The framers underscored this belief in the glossary
that they prepared for use during the constitutional convention,
which includes the following discussion of the sustained yield
principle:
As to forests, timber volume, rate of growth,
and acreage of timber type can be determined
with some degree of accuracy. For fish, for
wildlife, and for some other replenishable
resources such as huckleberries, as an
example, it is difficult or even impossible to
measure accurately the factors by which a
calculated sustained yield could be
determined. Yet the term "sustained yield
principle" is used in connection with
management of such resources. When so used it
denotes conscious application insofar as
practicable of principles of management
intended to sustain the yield of the resource
being managed. That broad meaning is the
meaning of the term as used in the Article.[17]
Elim argues for rigid enforcement of this passage:
resource managers must calculate a precise yield to be sustained
where such a calculation is "practicable." But Elim reads this
passage too literally. The glossary is a useful tool for
determining the framers' intent. Yet when read in the context of
the framers' discussions of resource management, the phrase
"insofar as practicable" cannot fairly be construed to support the
kind of mechanical application of the sustained yield principle
that Elim proposes. To the contrary, the primary emphasis of the
framers' discussions and the glossary's definition of sustained
yield is on the flexibility of the sustained yield requirement and
its status as a guiding principle rather than a concrete,
predefined process.
The record supports the Board's contention that the
nature of the fishery resource in this case precludes a
mathematically precise calculation of sustained yield. According
to the record, much scientific uncertainty exists in fisheries
management. Moreover, as the Board argues, no scientific study has
shown that the False Pass fishery has any significant impact on the
subsistence fishery in Norton Sound. Even if related, the two
fisheries -- one near the Alaska Peninsula and the other in Norton
Sound -- are separated by hundreds of miles of open ocean and
international waters. The salmon in these waters are subject to
numerous pressures, any one of which could account for a population
decrease in a given year.18 A short and incomplete list of these
factors includes weather, natural predators, competition with other
fish, international fishing efforts, water pollution, and improved
efficiency of fleets and fishing methods. Moreover, several
different species of salmon travel through the False Pass fishery,
thus creating a "mixed stock" that increases the challenges of
management. The record also shows that the salmon operate on a
fluctuating cycle that makes estimating returns from year to year
difficult even under the best conditions. Elim concedes that the
Board "did not have the detailed scientific data necessary to
calculate a maximum sustainable level of yield for the[] chum
stocks with mathematical precision." Given these limitations, the
Board reasonably concluded that it need not calculate a precise
numerical yield of salmon to be sustained, but need only apply
principles intended to sustain yield.
Here the record supports the conclusion that the False
Pass fishery management plan applies the sustained yield principle
"insofar as practical." In the management plan, the Board adopted
seven principles intended to sustain yield. These principles guide
the Board's decision-making with respect to the False Pass
fishery.19 The plan also contains specific statements setting forth
the Board's intent to diminish the interception of salmon and,
specifically, to disallow significant increases in the interception
of chum salmon.20 And all evidence indicates that the Board relied
on a rational approach to developing and implementing its
management goals. The Board commissioned studies and reviewed
others to determine the health of the fisheries. It also adopted
a number of concrete measures designed to sustain the salmon runs
when evidence indicated that they were in decline: closing and/or
severely restricting the commercial, sport, and subsistence
fisheries; modifying the fishing season; and imposing chum caps, a
permit system, and restrictive gear requirements. In its 1996
review of these measures and scientific studies, the Board
concluded that "further reductions in the June area M fishery would
not alleviate the remaining conservation concerns for [the
specific] rivers."
The Board must balance economic, ecological, cultural,
international, and other policy concerns when it makes decisions
about Alaska's fisheries. It must accommodate all of these
legitimate interests in the face of substantial scientific
uncertainty. Moreover, it is the Board's role to reach this
accommodation. Courts are singularly ill-equipped to make natural
resource management decisions. Consequently, we do not substitute
our judgment for that of the Board's.21 Our review of the record
does not persuade us that the Board has abused its considerable
discretion in developing a sustained yield policy for the False
Pass fishery as promulgated in the Board's regulation, 5 AAC
09.365. In the absence of evidence that the Board reached its
conclusions arbitrarily, we must defer to the Board's decision.
B. The Subsistence Law Issues
Alaska Statute 16.05.258 ("the subsistence law") requires
the Board to identify fish stocks that Alaskans traditionally use
for subsistence and then implement measures to protect those stocks
from overharvesting and other threats.22 Pursuant to this statute,
the Board promulgated 5 AAC 01.186, which identified the
subsistence resource in Norton Sound as "salmon, and all finfish
other than salmon [except certain herring] in the Norton Sound-Port
Clarence Area."23
According to Elim, this regulation's shortcomings are
threefold. First, Elim argues that its geographic focus is too
broad: the regulation identifies all of Norton Sound as the
subsistence area, whereas Elim claims that the legally relevant
areas are separately the Nome and Moses Point subdistricts.
Second, Elim challenges the Board's decision to consolidate the
subsistence resource into one group -- salmon -- instead of
recognizing chum salmon within each subdistrict as a separate
subsistence resource. Third, Elim argues that the Board has a duty
to apply the subsistence preference throughout the migratory range
of a fish stock that it has identified as a subsistence resource.
This court reviews the Board's interpretation of its own
regulation under the reasonable basis standard.24 To the extent
that this court's review requires it to determine the meaning of
the subsistence law, AS 16.05.258, this court exercises independent
judgment.25
1. Geographic scope
Under the subsistence law, the Board makes subsistence
determinations by studying the socio-economic characteristics of an
"area or community"26 within which the Board proposes to regulate
subsistence use. The term "area or community" is broad enough to
encompass several subdistricts grouped together. The subsistence
law leaves the determination of which geographic boundaries
constitute a subsistence area or community to the discretion of the
Board.
Our interpretation of the "area or community" standard is
supported by the state attorney general, who commented in a 1992
opinion that the subsistence law allowed the Board considerable
discretion in fixing a geographical boundary.27 The attorney
general maintained that the Board's discretion was limited by two
principles: first, the boundaries that the Board ultimately adopts
must be reasonably related to the twelve criteria; second, the
boundaries must be consistent with the legislature's purpose to
provide a preference for subsistence uses.28
We agree with this statement of the Board's duties, and
conclude that the Board fulfilled these duties here. The
geographical grouping in Norton Sound conforms to administrative
subsistence management areas. The same units are used for
commercial and sport fishing management. In fact, the subsistence
area used to be much larger, but the Board divided it in 1993.
To illustrate why the Board properly has discretion with
respect to geographical boundaries, we note that some concerns
support the identification of a larger area as opposed to a smaller
area as the relevant subsistence base. For example, commenting on
the 1986 subsistence law, Senate staff noted that "[a]reas . . .
should be large enough to include both where a particular stock or
population is normally taken and where it is normally used . . .
the boundaries of areas should not pose a barrier to village
residents who traditionally travel to a fish camp some distance
from the village."29 The Board must have the discretion to draw
boundaries that are appropriate for a given set of circumstances.
Given that the Board could reasonably draw the subsistence
boundaries in various places, we find that the Board's decision,
based on practical considerations and administrative expertise,
reflects a reasoned choice.
2. "Salmon" versus "chum salmon"
The subsistence law requires the Board to identify "fish
stocks . . . or portions of stocks or populations, that are
customarily and traditionally taken or used for subsistence."30 The
legislature defined "fish stock" as "a species, subspecies,
geographic grouping or other category of fish manageable as a
unit."31 Under this definition, manageability is the key element
in the classification of a category of fish as a "stock." In
applying the subsistence law in Norton Sound, the Board identified
the subsistence resource as simply "salmon."32 Elim argues that the
subsistence law requires the Board to separate chum salmon from
other types of salmon because chum salmon are "manageable as a
unit" in Norton Sound.
We give the Board's identification of fish stocks under
the subsistence law considerable deference for two reasons.
First, identifying a "fish stock" requires fisheries knowledge and
experience and thus falls within the Board's expertise. Second,
the subsistence law defines "fish stocks" broadly, allowing the
Board to identify any category of fish "manageable as a unit" as a
"stock."33 This broad definition provides the Board with the
flexibility it needs to accommodate the biological and ecological
concerns that accompany multi-species fisheries management. This
flexibility is even more important where, as here, management
issues are clouded by scientific uncertainty.
Of course, the Board's discretion is not unlimited. The
Board's ultimate decisions must be reasonably related to the
purposes of the subsistence law; in other words, the Board may not
manipulate the identification of a "stock" -- whether because that
"stock" is not "manageable as a unit" or otherwise -- simply to
achieve a predetermined outcome. While the Board may and should
weigh a variety of factors in making stock identifications --
including practical factors such as administrative resources as
well as scientific, cultural, economic, and ecological variables --
the Board's primary goal is to ensure that "subsistence uses of
Alaska's fish and game resources are given the highest preference,
in order to accommodate and perpetuate those uses."34
As a general rule, the Board should analyze individual
fish stocks for "customary and traditional" subsistence use.35 In
some circumstances, however, it may be appropriate for the Board to
group stocks together in applying the subsistence preference. We
review the record to determine whether the Board's decision to
group stocks together here was based on careful consideration of
relevant facts, and thus is reasonable.
Here, the Board determined that it was appropriate to
group salmon stocks together because subsistence users themselves
"customarily and traditionally" take the species interchangeably.
In discussing the standard for salmon in Norton Sound, Board member
Lyons noted that the all-salmon approach "acknowledges that [Norton
Sound] subsistence users will and do harvest whatever is available
to them to meet their needs." Lyons and Board Member Edfelt both
commented that this interchangeability for subsistence purposes
results from fluctuating salmon cycles in which different species
"boom and bust on odd and even year cycles." Further, area
biologist Lean confirmed that subsistence users "just call them big
fish and little fish." Board member Angasan agreed that the Board
should consider the species together because "you know you don't
have pinks in the area there on an uneven year, and you still [have
the same range of subsistence use]." The record thus confirms that
the Board's decision to consolidate was reasonably based on
evidence that the subsistence users themselves interchange salmon
stocks.
Moreover, we note that the Board did consider a chum
salmon component, albeit informally. In 1992 and in 1994 the Board
commented on the specific escapement counts for chum salmon in
Norton Sound. And in a 1996 meeting held to comply with the
superior court's first summary judgment order, the Board
recalculated the number of salmon needed to provide Norton Sound
residents with a reasonable subsistence opportunity. In these
calculations the Board separated chum salmon out as a separate
stock per the court's order. Although the Board did not formalize
this separation in a regulation, the record contains nothing to
indicate that the Board will not continue to consider chum salmon
as a separate stock when circumstances require.
3. The geographical reach of the subsistence regulation
Elim and the Board disagree with respect to the
geographical reach of the subsistence preference. Elim argues
that, regardless of whether a stock is "manageable as a unit"
throughout its migratory range, the Board must apply the
subsistence preference throughout a stock's migratory range once
that stock is identified as a subsistence resource within a given
area or community. In contrast, the Board argues that application
of the subsistence statute to a fish stock in a specific area or
community can never require that stock to be regulated in a
distant, mixed stock fishery. We disagree with both of these
positions.
Here, the Board identified salmon generally as a species
whose use was to be regulated for purposes of subsistence in the
communities of Norton Sound. It later informally acknowledged chum
salmon as a separately identifiable fish stock. The Board's
authority to manage that resource extended beyond the precise area
of identified subsistence use, but only so long as it continued to
believe that the species was "manageable as a unit" outside Norton
Sound.
In the present case, the Board had two independent bases
to justify its conclusion that in the context of the False Pass
fishery, chum salmon were not manageable as a unit for purposes of
subsistence use in the Norton Sound area: first, the lack of
scientific certainty that False Pass chum runs actually migrate to
Norton Sound; second, the impossibility of managing chums as a unit
in False Pass, where their migration is mixed in with a strong,
primary migration of sockeye salmon.
According to the record, neither Elim nor any scientific
study has proven that the False Pass fishery in fact consumptively
uses Norton Sound subsistence stocks. Elim itself acknowledges
that there is a "paucity" of knowledge regarding the relationship
between the False Pass fishery and Norton Sound returns. The
Board, which has fisheries expertise, thus has discretion to
analyze and weigh available scientific information. It
commissioned studies, reviewed others, heard testimony from various
experts, and decided that the available information was
inconclusive. In the absence of proof that the Board's judgment is
arbitrary or capricious, we decline to second-guess its conclusions
regarding the scientific data.
Based on this scientific uncertainty and the difficulty
inherent in managing single stocks within a mixed fishery, the
Board reasonably concluded that, for purposes of the Norton Sound
subsistence fishery, chums were not manageable as a unit in False
Pass. The Board thus justifiably decided to manage the False Pass
chums under its mixed stock policy. As long as the mixed stock
policy itself is valid, the Board's choice was reasonable.
C. The Mixed Stock Policy Is Valid.
The Board had previously adopted a mixed stock policy
that this court invalidated because the Board failed to follow the
requirements of the Administrative Procedure Act in adopting the
policy as a regulation.36 Consequently, in 1992 the Alaska
legislature adopted AS 16.05.251(h), which required the Board to
"adopt by regulation a policy for the management of mixed stock
fisheries. . . . consistent with sustained yield of wild fish
stocks."37 In response, the Board adopted the mixed stock policy
at issue here, 5 AAC 39.220. That regulation requires that
"conservation of wild salmon stocks consistent with sustained yield
shall be accorded the highest priority," and that "[a]llocation of
salmon resources will be consistent with the subsistence preference
in AS 16.05.258, and the allocation criteria set out [in the
Board's regulations]."38 The regulation also expresses the Board's
preference for assigning conservation burdens in mixed stock
fisheries through the application of specific fisheries management
plans set out in regulations. In the absence of a regulatory
management plan, and when it is necessary to restrict fisheries
where there are known conservation problems, the regulation
provides for the burden of conservation to be shared among all
fisheries in proportion to the fisheries' respective harvests on
the declining salmon stocks. The regulation also restricts new or
expanding mixed stock fisheries in many circumstances.
Elim argues that the regulation is devoid of substance,
and expresses unenforceable "preferences" rather than true
management "principles." Elim also criticizes the regulation
because it is not worded in definite, certain terms, but instead
allows the Board discretion to address a variety of individual
circumstances. Elim argues that in mandating the Board to adopt
the policy "by regulation," the legislature envisioned a policy
that would bind the Board in all circumstances. PMA and the Board,
on the other hand, argue that the Board has appropriately retained
the discretion to distribute conservation burdens
disproportionately in any given management plan.
As noted, this court invalidated the Board's previous
mixed stock policy due to the Board's failure to follow required
administrative procedures.39 It was this deficiency that the Alaska
legislature addressed when it required the Board to adopt "by
regulation" a mixed stock policy. In fact, the legislature
rejected a bill that would have spelled out a substantive policy.40
PMA and the Board argue that by rejecting a comprehensive bill for
a more general one, the legislature intended to leave the Board
with broad discretion in formulating a mixed-stock regulation. We
agree.
The development of a mixed stock policy involves the
Board's expertise, and therefore the court reviews the regulation
for a reasonable basis.41 Moreover, as the Board notes, a
regulation adopted under Alaska's administrative procedure statute,
AS 44.62.100, is presumed to be valid, and a challenger has the
burden to demonstrate that the regulation is invalid. Elim has not
met this burden. Elim insists that this regulation should have a
different substance, but we may not overturn a regulation simply
because one group of resource users believes that a different
standard is more desirable. The mixed stock regulation is the
product of a four-day meeting in which the Board took a hard look
at the issues and justified its decisions through written findings.
The regulation is not so indefinite and uncertain that we may
overturn it as facially vague or devoid of substance. If the
management principles that the regulation articulates do not
satisfy the legislature, then it certainly may address those
shortcomings. But for purposes of our judicial review, the
regulation is a valid exercise of the Board's discretion.
III. CONCLUSION
We AFFIRM the grant of summary judgment for the Board on
all grounds.
Footnotes:
1 See Peninsula Mktg. Ass'n v. State, 817 P.2d 917, 918
(Alaska 1991).
2 The Peninsula Marketing Association is a non-profit
corporation that represents the interests of commercial fishers of
the Alaska Peninsula. See id. at 918 n.2.
3 See Peninsula Mktg. Ass'n v. Rosier, 890 P.2d 567 (Alaska
1995); Peninsula Mktg. Ass'n v. State, 817 P.2d 917 (Alaska 1991).
4 See Rosier, 890 P.2d at 568 (discussing history of the
Board's actions with respect to the relationship between the False
Pass fishery and the northern subsistence fisheries).
5 See id. at 568-70 (describing these events in detail).
6 Elim also alleged that the Board had violated the equal
access provision of the Alaska constitution, the Open Meetings Act,
AS 44.62.310-.312, and the Administrative Procedure Act,
AS 44.62.010-.950. Elim eventually abandoned these claims.
7 See Rosier, 890 P.2d at 569-70.
8 See Stepovak-Shumagin Set Net Ass'n v. State, Bd. of
Fisheries, 886 P.2d 632, 636 (Alaska 1994).
9 See Moore v. State, Dep't of Transp. and Pub. Facilities,
875 P.2d 765, 767-68 (Alaska 1994).
10 See Alaska Wildlife Alliance v. Rue, 948 P.2d 976, 979
(Alaska 1997).
11 See Hammer v. City of Fairbanks, 953 P.2d 500, 504
(Alaska 1998).
12 Id. (quoting Tesoro Alaska Petroleum Co. v. Kenai Pipe
Line Co., 746 P.2d 896, 903 (Alaska 1987)).
13 See id.
14 Alaska Const. art. VIII, § 4.
15 5 AAC 09.365 provides in part:
(a) Mixed stocks of salmon bound for distant
systems have historically been intercepted in
significant numbers along the Alaska
Peninsula. To ensure that none of these runs
are overharvested it is necessary to restrain
their interception as provided for in the
management plan for the South Unimak and
Shumagin Islands June fisheries, set out in
this section.
(b) The Alaska Board of Fisheries (board) has
established sockeye salmon guideline harvest
levels on the South Unimak and Shumagin
Islands interception fisheries during June,
which are based on percentages of the latest
projected Bristol Bay inshore sockeye salmon
harvest as published by the department. . . .
(2) . . . Consistent with the board's Policy
for the Management of Mixed Stock Salmon
Fisheries set out in 5 AAC 39.220 and
traditional harvest patterns, the maximum
percentage of the sockeye salmon harvest
allowed for the South Unimak fishery is 6.8
percent and for the Shumagin Islands fishery,
1.5 percent. The forecasts for Bristol Bay are
sometimes updated as more information becomes
available, just before the South Unimak and
Shumagin Islands season, and exact numbers of
fish cannot be given before the opening of
each fishery.
. . . .
(d) On June 10, the commissioner may open, by
emergency order, a commercial fishing period
for sockeye salmon for six hours. If the ratio
of sockeye salmon to chum salmon is two to one
or greater, the commissioner may extend the
fishing period by emergency order. Subsequent
fishing periods for the South Unimak and
Shumagin Islands June fisheries shall be
established to allow commercial fishing when
the ratio of sockeye salmon to chum salmon
indicates that chum salmon harvest will be
minimized. Fishing time for commercial set
gillnet gear is specified in (g) of this
section.
(e) The South Unimak and Shumagin Island June
salmon fisheries target on the more abundant
and valuable sockeye salmon. The board
recognizes that the harvest of other salmon
species is incidental to the sockeye salmon
harvest. The board has determined that this
incidental harvest is unavoidable and cannot
be regulated with the present level of
knowledge regarding these fisheries. The board
will not support any significant increase in
the interception rate of chum salmon taken in
the South Unimak and Shumagin Islands June
salmon fisheries. These stocks are probably
fully utilized in existing terminal fisheries
of long standing. This determination is
consistent with the philosophy contained in
the board's Policy For The Management of Mixed
Stock Salmon Fisheries (5 AAC 39.220). The
board recognizes that the conservation and
allocation of nontargeted salmon stocks may be
a concern during some years, but does not have
the data to ensure specific corrective action
at this time (January 1990).
(f) The commissioner shall close, by
emergency order, the June fisheries before the
sockeye salmon guideline harvest levels are
taken if the guideline harvest level of chum
salmon specified in (k) is reached. The
department shall take appropriate inseason
management action under AS 16.05.060 to manage
the chum salmon harvest within the guideline
harvest established by the board while
attempting to allow full harvest of the
sockeye salmon guideline harvest level.
(g) In taking management action under (f) of
this section to reduce the chum salmon
harvest, the commissioner may not set fishing
periods for set gillnet gear of less than 16
hours unless a fishing period of 16 hours or
more would result in a harvest that exceeds
the guideline harvest level for chum salmon
specified in (k) of this section. If the ratio
of sockeye salmon to chum salmon in a
commercial fishing period for set gillnet gear
is equal to or greater than the recent 10-year
average, as determined by the department, the
commissioner may establish additional or
extended fishing periods by emergency order.
(h) After June 24, in either the South Unimak
or Shumagin Islands fishery, if the sockeye
salmon guideline harvest level under (b) of
this section and the maximum allowable
incidental harvest of chum salmon under (f) of
this section have not been attained, and if
the ratio of sockeye salmon to chum salmon is
two to one or less on any day, the next daily
fishing period for seine and drift gillnet
gear shall be of six-hour duration in that
fishery. After June 24, the South Unimak or
Shumagin Islands fishery shall close for all
gear types if the ratio of sockeye salmon to
chum salmon is two to one or less for any
three aggregate days. It is the board's intent
to demonstrate by this subsection that the
maximum or less harvest of 700,000 chum salmon
supersedes attempts to reach the sockeye
salmon guideline harvest levels.
(i) All salmon caught by a CFEC permit holder
must be retained, and each CFEC permit holder
must report the number of salmon caught,
including those taken but not sold, on an
ADF&G fish ticket. For the purposes of this
section, "caught" means brought on board the
vessel.
(j) The board will, to the extent
practicable, consider the following guiding
principles when taking actions associated with
the adoption of regulations regarding chum
salmon stocks in the South Unimak and Shumagin
Islands June Salmon Management Plan:
(1) the conservation and sustained yield of
healthy salmon resources and maintenance of
the habitat and ecosystem on which salmon and
allied species depend for survival throughout
their life-cycle;
(2) the maintenance of viable and diverse
fish species and stocks;
(3) the maintenance of the genetic diversity
of fish species and stocks;
(4) the best available information presented
to the board;
(5) the capability of being implemented and
evaluated, including factors such as flexible
and adaptive management, conflict with other
law, and mixed stock management;
(6) the capability of providing tangible
benefits to user groups or conservation, with
the least risk to existing fisheries and to
conservation; and
(7) the stability and viability of
subsistence, commercial, sport, and personal
use fisheries.
(k) If the harvest projection of the
Arctic-Yukon-Kuskokwim summer chum salmon
index group is
(1) less than the 33 percentile of the
catches of the index group from 1970 to the
present, the chum salmon guideline harvest
level is from 350,000 to 450,000 chum salmon;
the department shall manage for a guideline
harvest level of 400,000 to 450,000 chum
salmon; if the department identifies a
management concern for summer chum salmon
within the Arctic-Yukon-Kuskokwim region, the
department shall manage the June fishery
inseason for a guideline harvest level of
350,000 to 400,000 chum salmon;
(2) more than the 33 percentile, but less
than the 67 percentile, of the catches of the
index group from 1970 to the present, the chum
salmon guideline harvest level is from 450,001
to 550,000 chum salmon; the department shall
manage for a guideline harvest level of
500,000 to 550,000; if the department
identifies a management concern for summer
chum salmon within the Arctic-Yukon-Kuskokwim
region, the department shall manage the June
fishery inseason for a guideline harvest level
of 450,001 to 500,000 chum salmon;
(3) more than the 67 percentile of the
catches of the index group from 1970 to the
present, the chum salmon guideline harvest
level is from 550,001 to 650,000; the
department shall manage for a guideline
harvest level of 600,000 to 650,000; if the
department identifies a management concern for
summer chum salmon within the
Arctic-Yukon-Kuskokwim region, the department
shall manage the June fishery inseason for a
guideline harvest level of 550,001 to 600,000
chum salmon.
(l) For the purposes of this section,
(1) "management concern" means a chronic
inability, despite the use of specific
management measures, to maintain escapement
objectives; the term "chronic" refers to the
continuing or anticipated inability to meet
escapement objectives over a four year period,
which is generally equivalent to a life cycle
or generation of chum salmon;
(2) "Arctic-Yukon-Kuskokwim summer chum
salmon index group" includes salmon taken in
the Yukon summer chum salmon commercial and
subsistence fisheries, the Kotzebue commercial
fishery, the Norton Sound commercial fishery,
and Kuskokwim commercial fishery.
16 See 4 Proceedings of the Alaska Constitutional Convention
(PACC) 2456-57 (January 17, 1956).
17 Papers of Alaska Constitutional Convention, 1955-1956,
Folder 210, Terms; see also Hootch v. Alaska State-Operated Sch.
Sys., 536 P.2d 793, 800 (Alaska 1973) (while framers' purposes are
not necessarily conclusive, a historical perspective is essential
to an enlightened contemporary interpretation of the Constitution);
State v. Gonzalez, 825 P.2d 920 (Alaska App. 1992), aff'd, 853 P.2d
526 (Alaska 1993).
18 See Alaska Dep't of Fish & Game, Issue Paper on Mixed
Stock Management (Mar. 16, 1993) 7-8. ("It should be recognized
that changes in mixed stock fisheries can occur in several ways.
An increase in the number of gear units, changes in the
distribution of effort within the available fishing area or fishing
season, and fleet improvements in terms of vessel capacity, gear,
and technological advances can all increase fleet efficiency.
Effort in a mixed stock fishery may expand as a result of increases
in salmon abundance resulting from enhancement activities or
natural fluctuations. . . . In reviewing the conduct of mixed stock
fisheries, it may be difficult to precisely measure changes due to
data uncertainties.").
19 See 5 AAC 09.365(j), supra note 15.
20 See 5 AAC 09.365(a), (d)-(h), supra note 15.
21 See Stepovak-Shumagin Set Net Ass'n v. State, Bd. of
Fisheries, 886 P.2d 632, 637 (Alaska 1994); Meier v. State, Bd. of
Fisheries, 739 P.2d 172, 174 (Alaska 1987).
22 AS 16.05.258 provides in relevant part:
(a) Except in nonsubsistence areas, the Board
of Fisheries and the Board of Game shall
identify the fish stocks and game populations,
or portions of stocks or populations, that are
customarily and traditionally taken or used
for subsistence. . . .
(b) The appropriate board shall determine
whether a portion of a fish stock or game
population identified under (a) of this
section can be harvested consistent with
sustained yield. If a portion of a stock or
population can be harvested consistent with
sustained yield, the board shall determine the
amount of the harvestable portion that is
reasonably necessary for subsistence uses and
(1) if the harvestable portion of the stock
or population is sufficient to provide for all
consumptive uses, the appropriate board
(A) shall adopt regulations that provide a
reasonable opportunity for subsistence uses of
those stocks or populations;
(B) shall adopt regulations that provide for
other uses of those stocks or populations,
subject to preferences among beneficial uses;
and
(C) may adopt regulations to differentiate
among uses;
(2) if the harvestable portion of the stock
or population is sufficient to provide for
subsistence uses and some, but not all, other
consumptive uses, the appropriate board
(A) shall adopt regulations that provide
reasonable opportunity for subsistence uses of
those stocks or populations;
(B) may adopt regulations that provide for
other consumptive uses of those stocks or
populations; and
(C) shall adopt regulations to differentiate
among consumptive uses that provide for a
preference for the subsistence uses, if
regulations are adopted under (B) of this
paragraph;
(3) if the harvestable portion of the stock
or population is sufficient to provide for
subsistence uses, but no other consumptive
uses, the appropriate board shall
(A) determine the portion of stocks or
populations that can be harvested consistent
with sustained yield; and
(B) adopt regulations that eliminate other
consumptive uses in order to provide a
reasonable opportunity for subsistence uses;
and
(4) if the harvestable portion of the stock
or population is not sufficient to provide a
reasonable opportunity for subsistence uses,
the appropriate board shall
(A) adopt regulations eliminating consumptive
uses, other than subsistence uses;
(B) distinguish among subsistence users . . . .
23 5 AAC 01.186 (1993) provided:
The Alaska Board of Fisheries finds that
herring and herring roe along the coast
between Point Romanof and Cape Prince of Wales
and along the coast of Saint Lawrence Island,
and salmon in the Norton Sound-Port Clarence
Area, are customarily and traditionally taken
or used for subsistence.
See also 5 AAC 01.150 ("The Norton Sound-Port Clarence
Area includes all waters of Alaska between the latitude of the
westernmost tip of Cape Prince of Wales and the latitude of Canal
Point Light, including the waters of Alaska surrounding St.
Lawrence Island and those waters draining into the Bering Sea.").
5 AAC 01.186 was amended in 1996 and again in 1998, and
currently provides:
(a) The Alaska Board of Fisheries (board)
finds that the following fish stocks are
customarily and traditionally taken or used
for subsistence:
(1) herring and herring roe along the coast
between Point Romanof and Cape Prince of Wales
and along the coast of Saint Lawrence Island;
and
(2) salmon, and all finfish other than
salmon, except as specified in (1) of this
subsection, in the Norton Sound-Port Clarence
Area.
(b) The board finds that 96,000 - 160,000
salmon are reasonably necessary for
subsistence uses in the Norton Sound-Port
Clarence Area.
24 See Payton v. State, 938 P.2d 1036, 1041 (Alaska 1997).
25 See id.
26 AS 16.05.258(c) (as amended in 1992). This section
provides in relevant part:
In determining whether dependence upon
subsistence is a principal characteristic of
the economy, culture, and way of life of an
area or community under this subsection, the
boards shall jointly consider the relative
importance of subsistence in the context of
the totality of the following socio-economic
characteristics of the area or community:
(1) the social and economic structure;
(2) the stability of the economy;
(3) the extent and the kinds of employment
for wages, including full-time, part-time,
temporary, and seasonal employment;
(4) the amount and distribution of cash
income among those domiciled in the area or
community;
(5) the cost and availability of goods and
services to those domiciled in the area or
community;
(6) the variety of fish and game species used
by those domiciled in the area or community;
(7) the seasonal cycle of economic activity;
(8) the percentage of those domiciled in the
area or community participating in hunting and
fishing activities or using wild fish and
game;
(9) the harvest levels of fish and game by
those domiciled in the area or community;
(10) the cultural, social, and economic values
associated with the taking and use of fish and
game;
(11) the geographic locations where those
domiciled in the area or community hunt and
fish;
(12) the extent of sharing and exchange of
fish and game by those domiciled in the area
or community;
(13) additional similar factors the boards
establish by regulation to be relevant to
their determinations under this subsection.
27 See 1992 Informal Op. Att'y Gen. 77. This court
exercises its independent judgment on matters of statutory
interpretation. However, the court may properly consider the
opinions of the Attorney General for guidance. See Grimes v.
Kinney Shoe Corp., 938 P.2d 997, 1000 n.7 (Alaska 1997); Carney v.
State Bd. of Fisheries, 785 P.2d 544, 548 (Alaska 1990) (stating
that opinions of attorney general, while not controlling on matters
of statutory interpretation, are entitled to some deference).
28 See AS 16.05.258(b)(2) (as amended).
29 1990 Informal Op. Att'y Gen. 149.
30 AS 16.05.258(a).
31 AS 16.05.940(16); see also AS 16.05.258(a).
32 See 5 AAC 01.186.
33 AS 16.05.940(16); see also AS 16.05.258(a).
34 Ch. 1, § 1(c)(1), 2d Special Sess. Sess. Laws 1992.
35 See 1990 Informal Op. Att'y Gen. 149 ("It is evident that
customary and traditional uses are to be evaluated on particular
fish stocks and particular game populations; substitution of stocks
by the board is not permissible. . . . [E]ach stock or population
is to be evaluated on its own merits to determine whether it is
subject to customary and traditional uses."); see also Bobby v.
State, 718 F. Supp. 764, 776-81 (D. Alaska 1989) (explaining that
1986 subsistence law was intended to comply with the federal Alaska
National Interest Lands Conservation Act, and that the federal
legislative history evidenced a similar approach; "[n]eed is not
the standard. . . . [I]t matters not that other food sources may be
available at any given time or place.").
36 See Gilbert v. State, Dep't of Fish & Game, Bd. of
Fisheries, 803 P.2d 391, 395-97 (Alaska 1990); see also AS 44.62
(Alaska's Administrative Procedure Act).
37 See Ch. 93, § 1, SLA 1992.
38 5 AAC 39.220 provides in part:
(a) In applying this statewide mixed stock
salmon policy for all users, conservation of
wild salmon stocks consistent with sustained
yield shall be accorded the highest priority.
Allocation of salmon resources under this
policy will be consistent with the subsistence
preference in AS 16.05.258, and the allocation
criteria set out in 5 AAC 39.205, 5 AAC
75.017, and 5 AAC 77.007.
(b) In the absence of a regulatory management
plan that otherwise allocates or restricts
harvest, and when it is necessary to restrict
fisheries on stocks where there are known
conservation problems, the burden of
conservation shall be shared among all
fisheries in close proportion to their
respective harvest on the stock of concern.
The board recognized that precise sharing of
conservation among fisheries is dependent on
the amount of stock-specific information
available.
(c) The board's preference in assigning
conservation burdens in mixed stock fisheries
is through the application of specific fishery
management plans set out in the regulations.
A management plan incorporates conservation
burden and allocation of harvest opportunity.
(d) Most wild Alaska salmon stocks are fully
allocated to fisheries capable of harvesting
available surpluses. Consequently, the board
will restrict new or expanding mixed stock
fisheries unless otherwise provided for by
management plans or by application of the
board's allocation criteria. Natural
fluctuations in the abundance of stocks
harvested in a fishery will not be the single
factor that identifies a fishery as expanding
or new.
39 See Gilbert, 803 P.2d at 395-97.
40 See House Bill (H.B.) 541, 17th Leg., 2d Sess. (Feb. 18,
1992).
41 See Storrs v. State Med. Bd., 664 P.2d 547, 552 (Alaska
1983).
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