You can
search the entire site.
or go to the recent opinions, or the chronological or subject indices.
Interior Alaska Airboat Assoc. v. State, Board of Game (3/2/01) sp-5369
Interior Alaska Airboat Assoc. v. State, Board of Game (3/2/01) sp-5369
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
INTERIOR ALASKA AIRBOAT )
ASSOCIATION, INC., ) Supreme Court No. S-8869
)
Appellant, )
) Superior Court No.
v. ) 4FA-96-01494 CI
)
STATE OF ALASKA, BOARD OF ) O P I N I O N
GAME, )
)
Appellee. ) [No. 5369 - March 2, 2001]
______________________________)
Appeal from the Superior Court of the State of
Alaska, Fourth Judicial District, Fairbanks,
Ralph R. Beistline, Judge.
Appearances: Lynn E. Levengood, Downes,
MacDonald & Levengood, P.C., Fairbanks, for Appellant. Kevin M.
Saxby, Assistant Attorney General, Anchorage, Bruce M. Botelho,
Attorney General, Juneau, for Appellee.
Before: Matthews, Chief Justice, Eastaugh,
Fabe, Bryner, and Carpeneti, Justices.
MATTHEWS, Chief Justice.
I. INTRODUCTION
Challenged in this case is the designation of two areas
by the Board of Game as controlled use areas (CUAs). The Noatak
CUA closes a corridor along the Noatak River to the use of aircraft
for big game hunting for a part of the hunting season. The Nenana
CUA prohibits the use of airboats for moose hunting in a portion of
the Tanana Flats for all of the hunting season. Interior Alaska
Airboat Association contends that the regulations establishing
these CUAs violate article I, section 1 and article VIII, sections
1-4, 14, 16 and 17 of the Alaska Constitution. The Association
also contends that the regulations exceed the Board's authority and
that they are unreasonable and arbitrary. The superior court
granted summary judgment in favor of the Board. We conclude that
the regulations are constitutional, within the authority of the
Board, and neither arbitrary nor unreasonable. We therefore
affirm.
The Noatak CUA currently encompasses a corridor ten miles
wide centered on the Noatak River, extending upstream from the
river mouth for some 220 miles. This CUA is closed to the use of
aircraft for big game hunting or the transportation of hunters
between August 25 and September 15 of each year. [Fn. 1] The just-
ification for the Noatak CUA is two-fold. First, the restrictions
on hunter access by airplane are maintained in order to help reduce
harvests on a declining moose population. Second, the prohibition
on aircraft use is maintained to resolve conflicts between hunters
who use aircraft for access and hunters who use boats. Most
hunters who use aircraft do not reside on the Noatak and most local
hunters use boats. The Board of Game found that "[c]onflict occurs
when low-altitude flights by aircraft-borne hunters disturb
wildlife and disrupt hunting activities of those using boats.
Conflict also occurs when hunters transported by aircraft occupy
the best camping and hunting locations along the river, thereby
preventing local residents from using traditional hunting sites."
The Nenana CUA prohibits the use of airboats for moose
hunting or transporting moose hunters in a large area of the Tanana
Flats from September 1 through September 25, the entire moose-
hunting season for the area. The purpose of the Nenana CUA is to
forestall habitat alteration and eliminate conflicts between moose
hunters who use airboats and moose hunters who use other means of
transportation. Most hunters who reside in or adjacent to this CUA
do not use airboats. The Board found:
The purpose of the [Nenana CUA] is to
mitigate chronic conflicts between groups of hunters and to
minimize possible habitat impacts. The restriction of airboats is
intended to limit noise disturbance to moose hunters including
subsistence hunters who use still hunting and moose calling methods
of hunting while still allowing reasonable access to the area for
moose hunting by all. An area of comparable habitat, size and
accessibility remains available to airboat hunters in adjacent
areas . . . . This adjacent area has traditionally been less
important for subsistence hunters and more frequently used by
airboat hunters than has the [Nenana CUA].
The Association sued to set aside these CUAs. After both
parties moved for summary judgment, the trial court granted the
Board's motion and denied that of the Association. The court
entered findings of fact based on undisputed facts and conclusions
of law that the CUAs were lawfully established. We set forth at
this point those of the court's findings of fact and conclusions of
law which are particularly relevant to this appeal.
Nenana Controlled Use Area
1. The Board of Game heard testimony
from members of the public in an area of the
Tanana Flats near Nenana, Alaska, [of] airboat
use by moose hunters interfering with
traditional spot and stalk and stillhunting
techniques used by subsistence moose hunters.
2. The Board of Game also heard
testimony that in the same area, where heavy
airboat use had occurred, some wildlife
habitat changes, including alterations of
drainage patterns, had been observed.
3. The Board of Game also heard
testimony that airboat noise can range up to
135 decibels, approximately the same as the
noise produced by the engine of a commercial
jet aircraft being operat[ed] under full
power, and that it was impossible for hunters
to hear or call moose in the vicinity of such
noise.
4. The Board of Game also heard from
airboat users and manufacturers, who testified
that technological advances were addressing
the noise problem, and who countered the
habitat damage testimony and various other
complaints raised by others about airboat use.
5. The Board of Game concluded that a
conflict existed between moose hunters using
airboats and moose hunters using the more
traditional spot and stalk and stillhunting
methods, and that this conflict detrimentally
affected the subsistence use of moose from the
area, although game levels remain stable.
. . . .
The Noatak Controlled Use Area
1. The Board of Game heard testimony
from the public that traditional caribou
subsistence hunting methods, involving waiting
at known caribou crossings along the Noatak
River and shooting animals as herds approach
the river bank, were being interfered with by
hunters using aircraft to access the river
corridor. The testimony was that the numerous
take-offs, landings, and low overflights
frequently made caribou nervous and drove them
away from crossings where subsistence hunters
were lying in wait.
2. The Board of Game heard from the
Department of Fish and Game that subsistence
harvests of caribou had declined in the area,
even though the Western Arctic Caribou Herd
had increased in size. The Department also
recommended that moose harvest[s] along the
Noatak River be carefully monitored, as moose
harvests by hunters using aircraft for access
were increasing.
3. The Board of Game also heard
testimony that the Noatak River valley had
become an increasingly popular hunting
destination, and that as many as 200 flights
had occurred during the critical autumn
subsistence caribou hunting period in a
recent, relatively low-use, year.
4. The Board of Game also heard
testimony from fly-in hunters and aircraft
operators, arguing that their access should
not be restricted or eliminated for various
reasons including arguments that there was no
shortage of game in the area and complaints
about fairness, because the numbers of users
who fly in is greater than the number of users
who do not, and complaints about lack of
access.
5. The Board concluded that a conflict
existed between fly-in hunters, who were
mostly seeking moose, and subsistence hunters
who generally use boats to access the area and
typically are seeking caribou at traditional
subsistence hunting sites, detrimentally
affecting the subsistence uses of caribou from
the area.
. . . .
Conclusions of Law
1. Regulations which limit a means of
access used for hunting purposes fall within
the statutory authority of the Board of Game
to regulate means and methods used in the
pursuit, capture, taking and transport of game
and to regulate sport hunting and subsistence
hunting as needed for the conservation,
development and utilization of game. AS
16.05.255(a)(3) and (10).
2. The Alaska Supreme Court has
examined such means and methods restrictions
and found them to be time-honored management
tools accepted as legitimate by the framers of
the Alaska Constitution. See Fish Spotters
Ass'n v. State, 838 P.2d 798 (Alaska 1992).
3. The regulations in question apply
equally to all hunters and don't discriminate
against any one group of Alaskans nor classify
users into separate use categories.
4. Because the regulations at issue
merely restrict the use of certain types of
mechanized vehicles for hunting, equal access
and protection concerns are not implicated.
5. The Board of Game has both the right
and the obligation to resolve disputes among
competing users of Alaska's wildlife
resources, and this is especially so when it
finds that subsistence uses have suffered by
virtue of competing use.
6. The Board of Game's conduct with
regard to the Nenana Controlled Use Area and
the Noatak Controlled Use Area was within both
its statutory and its constitutional mandate,
and was the result of careful examination and
study.
In accordance with these conclusions the court entered final
judgment dismissing the Association's complaint.
II. STANDARD OF REVIEW
We review grants of summary judgment de novo. [Fn. 2]
Constitutional challenges are reviewed using a substitution of
judgment standard. [Fn. 3] Where the superior court acted as an
intermediate court of appeal, we review the administrative decision
directly. [Fn. 4] Regulations are presumptively valid and will be
upheld as long as they are "consistent with and reasonably
necessary to implement the statutes authorizing their adoption."
[Fn. 5] But reasonable necessity is not a requirement separate
from consistency. If it were, courts would be required to judge
whether a particular administrative regulation is desirable as a
matter of policy. [Fn. 6] Thus where a regulation is adopted in
accordance with the Administrative Procedures Act, and the
legislature intended to give the agency discretion, we review the
regulation first by ascertaining whether the regulation is
consistent with the statutory provisions which authorize it and
second by determining whether the regulation is reasonable and not
arbitrary. [Fn. 7]
In determining whether a regulation is reasonable and not
arbitrary courts are not to substitute their judgment for the
judgment of the agency. [Fn. 8] Therefore review consists
primarily of ensuring that the agency has taken a hard look at the
salient problems and has genuinely engaged in reasoned decision
making. [Fn. 9]
III. NON-CONSTITUTIONAL CHALLENGES TO THE CUAS
The Association makes a number of challenges to the CUAs
which are not based on provisions of the Alaska Constitution. The
Association argues that the regulations which establish the CUAs
are beyond the statutory authority of the Board; that a regulation
authorizing the Board to take action to avoid or minimize conflicts
between users of off-road vehicles and other user groups where
there is a "decline in the quality of the outdoor experience" is
not authorized by statute; that the Board is barred by regulation
from banning airboat use for hunting on navigable waters; and that
the regulations creating the CUAs are arbitrary, unreasonable, and
unnecessary. We turn to a discussion of these points.
A. The CUAs Are Within the Statutory Authority of the Board
of Game.
Alaska Statute 16.05.255 deals with the regulatory
authority of the Board of Game. It provides, among other things,
that the Board may adopt regulations it considers advisable for
"establishing the means and methods employed in the pursuit,
capture, taking, and transport of game," [Fn. 10] and for
"regulating sport hunting and subsistence hunting as needed for the
conservation, development, and utilization of game." [Fn. 11] The
Association argues that the regulations are not authorized because
of the absence of evidence that they are consistent with
conservation and development goals or that they are needed for the
conservation, development and utilization of game. For the reasons
that follow we conclude that the regulations are within the
statutory authority of the Board.
The legislature has authorized the Board to establish
such means and methods that "it considers advisable." [Fn. 12] The
only textual limitation on this grant of authority is procedural.
Means and methods regulations, like other Board regulations, must
be adopted in accordance with the Administrative Procedures Act.
There is no contention that there were procedural infirmities with
respect to the CUAs in question.
In one sense, since the Board has explicit statutory
authority to regulate means and methods, any means and methods
which the Board considers advisable are consistent with the
statute. But the Board of Game was created "for purposes of the
conservation and development of the game resources of the state."
[Fn. 13] We agree with the Association that means and methods
regulations should be reviewed for consistency with these
overarching purposes.
In Alaska Fish Spotters Association, Inc. v. State,
Department of Fish & Game, we discussed the definition of
"conservation and development" in the context of a means and
methods fisheries regulation. We stated:
In conformity with article VIII, section
2 of the Alaska Constitution, the legislature created the Board of
Fisheries "[f]or purposes of the conservation and development of
the fishery resources of the state." AS 16.05.221(a). "We have
previously defined 'conserving' as 'impl[ying]' controlled
utilization of a resource to prevent its exploitation, destruction
or neglect. 'Developing' connotes management of a resource to make
it available for use.' " Gilbert, 803 P.2d at 393 n.1 (alteration
in original) (quoting Kenai Peninsula Fisherman's Coop. v. State,
628 P.2d 897, 903 (Alaska 1981)).
In support of these goals, the
legislature has authorized the Board to adopt regulations it
considers advisable for "establishing the means and methods
employed in the pursuit, capture and transport of fish" and for
"regulating commercial, sport, subsistence, and personal use
fishing as needed for the conservation, development, and
utilization of fisheries." AS 16.05.251(a)(4), (12).[ [Fn. 14]]
The CUAs fit within the definitions of conservation and
development as expressed in Fish Spotters. The Noatak CUA is
maintained in part because of moose shortages. One reason for the
Nenana CUA is to prevent habitat alteration caused by airboats.
These are classic conservation reasons. Both of the CUAs also fall
within the "development" definition employed in Fish Spotters for
they are regulations which make game resources available for use in
a certain way. The CUAs are therefore consistent with the
conservation and development goals which guide the Board's conduct.
The Association argues that the CUAs in this case are not
"reasonably necessary for conservation or development" even if they
are consistent with these purposes. But in State, Department of
Revenue, Permanent Fund Dividend Division v. Cosio we observed that
when we review the validity of a regulation "we do not generally
require a separate showing of reasonable necessity" where we find
that the regulation is consistent with the statutory purpose. [Fn.
15] We exercise this restraint out of recognition that "inquiry
into whether a regulation is necessary as a means to a legislative
end would mire this court in questions of public policy and the
advisability of possible alternatives." [Fn. 16] "Such a searching
inquiry is beyond our authority and expertise" and "[i]t is a rare
case where a regulation, although not inconsistent with the purpose
of the statute, is wholly superfluous to the achievement of that
purpose." [Fn. 17] More recently we have held that "reasonable
necessity is not a requirement separate from consistency" and that
our review should center on the question of consistency with the
authorizing statute. [Fn. 18]
Based on these authorities we confine our review to
consistency with the authorizing statute, along with
reasonableness and the lack of arbitrariness. [Fn. 19] Any review
of "necessity" would require the court to second guess policy
choices that have been delegated to the Board by the legislature.
B. The Regulation Authorizing the Board to Minimize
Conflicts Between Users of Off-Road Vehicles and Others Is
Authorized.
5 Alaska Administrative Code (AAC) 92.004 provides in
part:
(a) Off-road vehicles are a legitimate
method of transporting hunters and game in the state, subject to
requirements of federal, state, and local landowners. If the Board
of Game, through its public process, finds that off-road vehicle
use attributed to hunting activities in a specific area has
resulted or is likely to result in one or more of the following
conditions, it will, in its discretion, take action to avoid or
minimize the conditions:
. . . .
(4) chronic conflicts with other user
groups leading to a decline in the quality of the outdoor
experience.
This regulation does not apply to the Noatak CUA as
airplanes are not defined in the regulation as off-road vehicles.
But the regulation does apply with respect to the Nenana CUA and
the Board referred to it in its findings establishing the Nenana
CUA. The Association challenges this regulation, contending that
"decline in the quality of the outdoor experience" is not a subject
that is fairly subsumed within the "conservation and development"
authority of the Board of Game.
"Development" includes making a resource available for
use. Making a game resource available for use, in turn, entails
making judgments as to how the resource will be used. Users'
preferences, including those based on the quality of their
experience, are relevant in deciding how a resource will be used.
Game, like other natural resources, is managed for the benefit of
people [Fn. 20] and one measure of benefit to people is the quality
of their experiences. Based on these considerations we think that
there can be no reasonable question but that the Board may consider
the quality of hunters' outdoor experiences under its development
mandate.
In rejecting the Association's argument on this point we
note that there are numerous CUAs statewide that have been
established at least in part for quality-of-experience reasons.
The State lists nine CUAs located in the Tanana River drainage
alone that ban some types of motorized access for hunting. Some,
such as those in the Wood River and Yanert CUAs, ban motorized
access including motor boats and airboats but not aircraft.
Others, as in the Delta, Glacier Mountain, and Macom Plateau CUAs,
ban all motorized access including aircraft. Statewide, there are
twenty-two CUAs, all of them imposing some limitations on the use
of motorized transport for hunting.
C. The Board Is Not Barred from Regulating Airboats on
Navigable Waters.
The Association also argues that the Board is only
permitted to regulate airboats when they are operated outside of
navigable waters, because 5 AAC 92.004 defines off-road vehicles as
"airboats operated outside a navigable waterway." However, 5 AAC
92.004 does not limit the Board's authority; it is merely a
regulation, separate from the CUA regulations, that is also within
the Board's authority to enact. The Board has the authority under
AS 16.05.255 to regulate vehicles used for hunting purposes or
transportation of hunters, hunting gear, or game, and this
authority extends to navigable waters.
D. The Regulations Are Reasonable and Not Arbitrary.
The Association preliminarily challenges the regulations
on the ground that the Board has not provided "a decisional
document sufficient to justify the challenged CUA's." This court
has required that agency adjudicative decisions be accompanied by
written findings and a decisional document. [Fn. 21] As to non-
adjudicative decisions, such as those presently before us, we have
"strongly suggested," but not mandated, that these also should be
supported by adequate decisional documents. [Fn. 22] The point is
moot in this case because there are adequate decisional documents
with respect to both CUAs.
The Association's arguments that the CUAs are
unreasonable and arbitrary include complaints that the CUAs are too
large given the limited number of local hunters; that in the case
of Nenana, even-handed noise emission regulations would be better
than banning all airboats because some other transportation devices
permitted in the CUA are noisier than airboats and because airboats
could be made more quiet; and that "it is unreasonable for the
Board not to consider that the appellant's access into the public
lands within the Nenana CUA was not of high individual importance,
equal to that of the complaining group."
In our view these complaints express legitimate points of
view of the sort that the Board can and should consider in deciding
whether to create or in some way alter a CUA. They are matters of
policy committed to the judgment of the Board. The CUAs might be
smaller, or perhaps they should not exist at all. Explicit noise
regulations might be substituted for prohibitions on types of
vehicles. Other methods of hunting transportation might be permit-
ted or banned. Exceptions in some areas might be made. All such
questions involve policy for the Board.
In deciding whether a regulation is reasonable and not
arbitrary we deal not with policy but process. We ask whether the
agency has failed to consider an important factor or whether it has
"not really taken a 'hard look' at the salient problems and has not
genuinely engaged in reasoned decision making". [Fn. 23] We find
no process failures in this case.
Numerous public hearings have been held with respect to
the establishment of and maintenance of the CUAs. Much public
testimony has been received. The Board's findings concerning the
need for establishment and maintenance of the CUAs reflect careful
consideration of this testimony. The Board's findings also reflect
concern for those favoring means of transportation excluded from
the CUAs. [Fn. 24] The findings concerning the need for the CUAs
are supported by testimony, though there is also conflicting
testimony. No important factor has been identified which the Board
failed to consider.
When the Association argues that the Board failed to
consider important factors in its decision to create the CUA, it is
really arguing that the Board should have weighed the factors
differently. For example, the Association claims that the Board
failed to "consider that the Appellant's access into the public
lands within the Nenana CUA was not of high individual importance,
equal to that of the complaining group." The regulation at issue,
however, does not limit anyone's access to the public lands, merely
the means of access for hunting and related purposes. The
Association also claims that the Board ignored testimony that other
motorized vehicles were as loud as airboats. However, the Board
also heard testimony that airboats were uniquely loud, and their
failure to give more weight to testimony advocated by the
Association does not constitute a failure to take the "hard look"
required by Alaska law. [Fn. 25] The Association argues that
"[t]here is no record that the BOG considered the importance of the
outdoor experience of persons utilizing aircraft access to [the
Noatak] CUA." To the contrary, the record demonstrates that the
Board did give consideration to how the challenged regulation would
affect aircraft users. The Association's real dispute is with the
relative weight the Board accorded to the importance of the outdoor
experience of aircraft users. This court is not empowered to
resolve that dispute.
In summary, the Board of Game is charged by the
legislature to make the decisions it made with respect to these two
CUAs. The record shows that the Board gave careful consideration
to conflicting points of view in deciding as it did. While the
Board's decisions are controversial and by no means the only
reasonable decisions that it might have made, they are nonetheless
the product of a process which was neither unreasonable nor
arbitrary.
IV. CONSTITUTIONAL CLAIMS
The Association's main argument is that the CUAs create
and protect "local, monopolistic interests" by enabling local
hunters to use their preferred methods of hunting transportation
while putting non-local hunters who prefer other methods of hunting
transportation at a disadvantage. The Association contends that
this alleged local monopoly violates a number of provisions of the
Alaska Constitution. These are article VIII, section 4 --
requiring state resources to be managed on the sustained yield
principle subject to preferences among beneficial uses; [Fn. 26]
article I, section 1 -- the equal rights opportunities and
protection clause; [Fn. 27] article VIII, section 2 -- requiring
the legislature to provide for the utilization, development and
conservation of state resources "for the maximum benefit of its
people; [Fn. 28] article VIII, section 3 -- reserving to the people
for common use state resources including wildlife; [Fn. 29] article
VIII, section 14 -- providing that access to the public waters of
the state shall not be denied but that it may be regulated by the
legislature; [Fn. 30] and article VIII, section 17 -- providing
that laws and regulations regarding the use of natural resources
shall apply equally to all persons similarly situated. [Fn. 31]
The Association's multi-faceted constitutional argument
is answered by recent decisions of this court. In Alaska Fish
Spotters Association v. State, Department of Fish and Game, a means
and methods regulation banning the use of aircraft for the purpose
of locating salmon was challenged under the same articles of the
Alaska Constitution raised here. [Fn. 32] We observed that "Fish
Spotters' constitutional arguments carry little weight where, as in
this case, the Board has exercised its authority by restricting
means and methods of access in a manner which applies equally to
all citizens." [Fn. 33]
With respect to the common use argument in Fish Spotters,
we stated that
we do not agree with Fish Spotters'
fundamental premise that the common use clause obligates the state
to guarantee access to a natural resource by a person's preferred
means or method. We conclude that the regulation banning fish
spotting in Bristol Bay was not constitutionally infirm. Rather,
it constituted a permissible limitation of the type traditionally
imposed by the state on the means and methods which citizens may
employ as they utilize fishery resources.[ [Fn. 34]]
Concerning the "no exclusive rights" clause of article
VIII, section 15, we observed that the regulation in question did
not grant exclusive rights or special privileges.
A ban on the use of a means of fishing does
not equal a creation of an exclusive right or special privilege.
It is true that only those who previously used aircraft to spot
fish were directly affected by the disputed regulation. However,
this will be the case whenever a regulation is adopted which bans
the use of a certain tool for taking fish.[ [Fn. 35]]
Concerning the argument that the regulation violated the
equal rights opportunities and protection clause of article I,
section 1, and the uniform application clause of article VIII,
section 17, we were also unpersuaded. We stated that because the
regulation applied equally to all citizens it "did not implicate
Alaska's 'equal protection' or 'uniform application' clauses." [Fn.
36]
Another relevant case is State v. Kenaitze Indian Tribe.
[Fn. 37] There we discussed a contention that banning the
subsistence priority in non-subsistence areas was in itself
unconstitutional because residents in non-subsistence areas were
thereby denied "convenient local subsistence access to fish and
game resources." [Fn. 38] We rejected this contention, stating:
Inconvenience is in no sense the
equivalent of a bar to eligibility for participation in subsistence
hunting and fishing and does not suffice to trigger an analysis
under the equal access clauses. What we recently stated in Tongass
Sport Fishing Association v. State, 866 P.2d 1314, 1318 (Alaska
1994), is also applicable to the current case:
We have held that the "common
use" clause of article VIII, section 3, the "no exclusive right of
fishery" clause of section 15, and the "uniform application" clause
of section 17 are not implicated unless limits are placed on the
admission to resource user groups.[ [Fn. 39]]
The basis for the classification contained in these CUAs
is the type of equipment used, aircraft in the case of Noatak, and
airboats in Nenana. But we have made it clear that distinctions
based on the type of equipment used in the harvest of a resource
are not prohibited by the Alaska Constitution. In State v. Hebert,
we noted that "gear size limitations" like "time and area
restrictions" were time honored management tools. We observed that
"[w]e have not been presented with an argument which persuades us
that such limitations may be at risk under either the federal or
the Alaska constitution. Our constitution states that only
'persons,' not nets or boats, are 'entitled to equal rights.'" [Fn.
40]
Based on these authorities, we conclude that the
Association's argument that the CUAs create forbidden monopolistic
privileges in local hunters must be rejected. The CUAs are open to
any Alaskan who wants to use them. The equipment limitations which
apply in the CUAs apply equally to all users. To be sure, the
equipment limitations are an inconvenience to those who, to use the
words of our Fish Spotters' decision, "had previously used the
banned tool." [Fn. 41] Still, those prior users have access to the
resource equal to that of others and the inconvenience that they
experience "is in no sense the equivalent of a bar to eligibility
for participation" in big game hunting in the CUAs and thus "does
not suffice to trigger an analysis under the equal access clauses."
[Fn. 42]
The Association makes two arguments that are independent
of its argument that the constitutional equal access clauses are
violated by the CUAs. It argues that article VIII, section 1 is
violated. This clause provides that "it is the policy of the State
to encourage the settlement of its lands and the development of its
resources by making them available for maximum use consistent with
the public interest." But the Association's argument on this point
cites only Wernberg v. State, an eminent domain case dealing with
the access rights of a riparian owner to adjacent navigable waters.
[Fn. 43] Wernberg casts no light on how article VIII, section 1
might be applied in this case, nor does the Association's
conclusory argument which devotes less than half a page to this
point. Under these circumstances we consider the Association's
argument on article VIII, section 1 to be waived. [Fn. 44]
Very similar is the Association's argument concerning
article VIII, section 14. This clause provides in part that
"[f]ree access to the navigable or public waters of the State, as
defined by the legislature, shall not be denied any citizen of the
United States or resident of the State, except that the legislature
may by general law regulate and limit such access for other
beneficial uses or public purposes." Again, the Association cites
only Wernberg and makes only a conclusory argument to the effect
that this clause prohibits the CUAs. We consider this point also
to be waived.
V. CONCLUSION
For the reasons expressed, we AFFIRM the decision of the
superior court upholding the validity of the CUAs.
FOOTNOTES
Footnote 1:
In Unit 23, which encompasses the Noatak CUA, the caribou
season is July 1-June 30 (but cows may not be taken May 16-June
30). See 5 AAC 85.025. In the Noatak drainage portion of Unit 23,
the moose season is August 1-September 15, and October 1-March 31.
See 5 AAC 85.045.
Footnote 2:
See Christensen v. NCH Corp., 956 P.2d 468, 474 (Alaska 1998).
Footnote 3:
See Native Village of Elim v. State, 990 P.2d 1, 5 (Alaska
1999).
Footnote 4:
See Rollins v. State, Dep't of Revenue, Alcoholic Beverage
Control Bd., 991 P.2d 202, 206 (Alaska 1999).
Footnote 5:
State, Bd. of Marine Pilots v. Renwick, 936 P.2d 526, 531
(Alaska 1997).
Footnote 6:
See id.; State, Dep't of Revenue v. Cosio, 858 P.2d 621, 624
n.1 (Alaska 1993).
Footnote 7:
See Kelly v. Zamarello, 486 P.2d 906, 911 (Alaska 1971); see
also Renwick, 936 P.2d at 531; Cosio, 858 P.2d at 624 n.1.
Footnote 8:
See Meier v. State, Bd. of Fisheries, 739 P.2d 172, 174
(Alaska 1987).
Footnote 9:
See Tongass Sport Fishing Ass'n v. State, 866 P.2d 1314, 1319
(Alaska 1994); Gilbert v. State, Dep't of Fish and Game, 803 P.2d
391, 398 (Alaska 1990).
Footnote 10:
AS 16.05.255(a)(3).
Footnote 11:
AS 16.05.255(a)(10).
Footnote 12:
AS 16.05.255(a).
Footnote 13:
AS 16.05.221(b).
Footnote 14:
838 P.2d 798, 800 (Alaska 1992).
Footnote 15:
858 P.2d 621, 624 n.1 (Alaska 1993).
Footnote 16:
Id.
Footnote 17:
Id.
Footnote 18:
Board of Trade, Inc. v. State, Dep't of Labor, 968 P.2d 86, 89
(Alaska 1998); see also Renwick, 936 P.2d at 531.
Footnote 19:
See supra note 7.
Footnote 20:
See Article VIII, section 2 of the Alaska Constitution: "The
legislature shall provide for the utilization, development, and
conservation of all natural resources belonging to the State,
including land and waters, for the maximum benefit of its people."
Footnote 21:
See Peninsula Marketing Ass'n v. State, 817 P.2d 917, 922
(Alaska 1991).
Footnote 22:
See id. at 922-23.
Footnote 23:
Southeast Alaska Conservation Council, Inc. v. State, 665 P.2d
544, 549 (Alaska 1983) (quoting Leventhal, Environmental Decision
Making and the Role of the Courts, 122 U. Pa. L. Rev. 509, 511
(1974)).
Footnote 24:
The Board gave careful consideration to aircraft use for
hunting in the Noatak area and airboat use for hunting in the
Nenana area. In both cases the Board decided that opportunities to
use these means of transportation still existed near or in the
affected areas. In the case of Noatak the Board noted that
aircraft-borne moose and caribou hunters still had access to rivers
in the Noatak drainage outside the CUA and access was available
during the long moose and caribou seasons before August 25 and
after September 15. The Board also noted that hunters can be
transported to tributaries by aircraft outside the corridor and
float into the corridor with arrangements to be picked up by
aircraft after September 15 and that the western caribou herd,
which is the focus of caribou hunting along the Noatak, is also
available to aircraft-borne hunters during the year outside the CUA
in the same game management unit as the CUA.
Similarly, with respect to the Nenana CUA, the Board
noted that "large areas near Fairbanks remain open to airboat use
for moose hunting." Further, the Board stated that "an area of
comparable habitat, size and accessibility remains available to
airboat hunters in adjacent areas of GMU 20A and GMU 20C. This
adjacent area has traditionally been less important for subsistence
hunters and more frequently used by airboat hunters than has the
NCUA."
Footnote 25:
See Southeast Alaska Conservation Council, 665 P.2d at 549.
Footnote 26:
Article VIII, section 4 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.
Footnote 27:
Article I, section 1 provides:
This constitution is dedicated to the
principles that all persons have a natural right to life, liberty,
the pursuit of happiness, and the enjoyment of the rewards of their
own industry; that all persons are equal and entitled to equal
rights, opportunities, and protection under the law; and that all
persons have corresponding obligations to the people and to the
State.
Footnote 28:
Article VIII, section 2 provides:
The legislature shall provide for the
utilization, development, and conservation of all natural resources
belonging to the State, including land and waters, for the maximum
benefit of its people.
Footnote 29:
Article VIII, section 3 provides:
Wherever occurring in their natural
state, fish, wildlife, and waters are reserved to the people for
common use.
Footnote 30:
Article VIII, section 14 provides:
Free access to the navigable or public
waters of the State, as defined by the legislature, shall not be
denied any citizen of the United States or resident of the State,
except that the legislature may by general law regulate and limit
such access for other beneficial uses or public purposes.
Footnote 31:
Article VIII, section 17 provides:
Laws and regulations governing the use or
disposal of natural resources shall apply equally to all persons
similarly situated with reference to the subject matter and purpose
to be served by the law or regulation.
Footnote 32:
838 P.2d 798 (Alaska 1992).
Footnote 33:
Id. at 802.
Footnote 34:
Id. at 801.
Footnote 35:
Id. at 803.
Footnote 36:
Id. at 804.
Footnote 37:
894 P.2d 632 (Alaska 1995).
Footnote 38:
Id. at 640.
Footnote 39:
Id.
Footnote 40:
803 P.2d 863, 865-66 (Alaska 1990).
Footnote 41:
Fish Spotters, 838 P.2d at 802.
Footnote 42:
Kenaitze, 894 P.2d at 640.
Footnote 43:
516 P.2d 1191 (Alaska 1973).
Footnote 44:
See Martinson v. ARCO Alaska, Inc., 989 P.2d 733, 737 (Alaska
1999) ("Where a point is given only a cursory statement in the
argument portion of the brief, the point will not be considered on
appeal.").
