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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. State v. Kenaitze Indian Tribe (01/16/2004) sp-5770

State v. Kenaitze Indian Tribe (01/16/2004) sp-5770

     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,
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            THE SUPREME COURT OF THE STATE OF ALASKA


STATE OF ALASKA and FRANK     )
RUE, as Commissioner of Fish and   )    Supreme Court No. S-10358
Game,                         )
          Appellants,              )    Superior Court No. 3AN-91-
4569 CI
                              )
     v.                       )    O P I N I O N
                              )
KENAITZE INDIAN TRIBE,        )    [No. 5770 - January 16, 2004]
NINILCHIK TRADITIONAL         )
COUNCIL, KNIK TRIBAL          )
COUNCIL, and NATIVE VILLAGE   )
OF EKLUTNA,                   )
                              )
          Appellees.               )
________________________________)
                              )
KENAITZE INDIAN TRIBE,        )    Supreme Court No. S-10388
                              )
          Cross-Appellant,         )
                              )
     v.                       )
                              )
STATE OF ALASKA and FRANK     )
RUE, as Commissioner of Fish and   )
Game,                         )
                              )
          Cross-Appellees.         )
________________________________)


          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Mark Rindner, Judge.
          Appearances:    Stephen M.  White,  Assistant
          Attorney   General,  and  Bruce  M.  Botelho,
          Attorney      General,      Juneau,       for
          Appellants/Cross-Appellees.           Goriune
          Dududgian  and  James J. Davis,  Jr.,  Alaska
          Legal  Services Corporation, Anchorage,   for
          Appellee/Cross-Appellant   Kenaitze    Indian
          Tribe,  and for Appellees Knik Tribal Council
          and Native Village of Eklutna.  David S. Case
          and  Cindy  Thomas, Landye Bennett  Blumstein
          LLP,   Anchorage,   for  Appellee   Ninilchik
          Traditional Council.

          Before:   Matthews,  Eastaugh,  Bryner,   and
          Carpeneti,  Justices.  [Fabe, Chief  Justice,
          not participating.]

          EASTAUGH, Justice.

I.   INTRODUCTION

          After  the  Alaska Joint Boards of Fisheries  and  Game

promulgated a regulation classifying the communities of  Eklutna,

Knik,  and  Ninilchik  as nonsubsistence areas,  the  communities

appealed  to  the superior court, which held that the  regulation

was  invalid because it did not satisfy AS 16.05.258(c).  Because

we   conclude   that  the  joint  boards,  in  promulgating   the

regulation, did not act arbitrarily and capriciously, we  reverse

the decision of the superior court, thus reinstating the disputed

regulation.  We also conclude that the joint boards did  not  err

by  relying  on the information available to them.  Additionally,

we  reject  the cross-appeal of the Kenaitze Indian Tribe,  which

claims   that   the  superior  court  erred  in   upholding   the

classification  of  the remainder of the  Kenai  Peninsula  as  a

nonsubsistence area.

II.  FACTS AND PROCEEDINGS

          In  1992  the  Alaska  legislature  amended  the  state

subsistence  law1  to require the Joint Boards of  Fisheries  and

Game  to identify nonsubsistence areas, where subsistence hunting

and  fishing  would  not be permitted.2  The  statute  defined  a

nonsubsistence area as an area or community where dependence upon

subsistence  is  not a principal characteristic of  the  economy,

culture,  and  way  of  life  of  the  area  or  community.3   In

determining  whether  an  area  or  community  qualifies   as   a

nonsubsistence area, the joint boards are required by the statute

to  consider thirteen socio-economic characteristics of the  area

or community.4

          Per  the  1992  amendments, the  joint  boards  met  in

          November 1992 to identify nonsubsistence areas.  The joint boards

heard   public   testimony  from  affected  tribe  members,   and

considered evidence submitted by the tribes and reports from  the

Alaska  Department  of  Fish and Game.   The  joint  boards  then

adopted  regulation  5 Alaska Administrative Code  (AAC)  99.015,

which  established five nonsubsistence areas in  the  state:  the

Ketchikan  Nonsubsistence Area, the Juneau  Nonsubsistence  Area,

the  Anchorage-MatSu-Kenai  Nonsubsistence  Area,  the  Fairbanks

Nonsubsistence  Area,  and the Valdez Nonsubsistence  Area.5   At

issue  in  this  case is the Anchorage-MatSu-Kenai Nonsubsistence

Area,  which encompasses most of the Kenai Peninsula, all of  the

Municipality  of  Anchorage, and a large part of  the  Matanuska-

Susitna Borough.6

          The Kenaitze Indian Tribe filed suit in 1991 seeking  a

judicial declaration that the state was not managing the  salmon,

hooligan, and smelt stocks in Upper Cook Inlet in accordance with

the subsistence priority as required by law.  The Kenaitze Indian

Tribe  has approximately 800 members, most of whom reside on  the

Kenai  Peninsula,  around the City of  Kenai.   Its  members  are

direct descendants of the Denaina-Athabascan Indians.  The  tribe

also sought an injunction barring the state from restricting  the

tribes  ability  to  engage in subsistence uses  of  those  fish.

After  the  joint  boards  established the  Anchorage-MatSu-Kenai

Nonsubsistence  Area  per  the 1992 revised  statute,  the  tribe

amended  its  complaint to include claims that the nonsubsistence

area  violated its members constitutional rights under the Alaska

Constitutions equal access clauses (article VIII, sections 3, 15,

17)  and  equal  protection clause (article I, section  1).   The

tribe  also  claimed  that  the  joint  boards  creation  of  the

Anchorage-MatSu-Kenai  Nonsubsistence  Area  violated  the   1992

subsistence  statute  because  the joint  boards  exceeded  their

delegated authority.

          The  Ninilchik Traditional Council, the Native  Village

of  Eklutna, and the Knik Tribal Council intervened with  similar

          claims against the state.7  The Ninilchik Traditional Council

represents  a  community whose members are direct descendants  of

the Denaina-Athabascan Indians.  Its members live along the coast

of  Cook  Inlet  in  the  vicinity  of  Ninilchik  on  the  Kenai

Peninsula.  Eklutna Village members are direct descendants of the

Denaina-Athabascan Indians.  Located within the  Municipality  of

Anchorage,   the   village  consisted  of   thirty   adults   and

approximately  seventeen  children  in  1992.   The  Knik  Tribal

Council  represents a community located in the  Matanuska-Susitna

Borough;  its  members  are direct descendants  of  the  Denaina-

Athabascan  Indians and live along the coast of  Knik  Arm,  near

Knik and Wasilla.

          The  state  and the plaintiffs filed cross-motions  for

partial summary judgment on the constitutional issues presented.8

In  October  1993 then-Superior Court Judge Dana A. Fabe  granted

the plaintiffs motion and denied the states motion.  The superior

court declared that the nonsubsistence area provision of the 1992

act  was unconstitutional under article VIII, sections 3, 15, and

17  of  the  Alaska Constitution and therefore held the provision

void  and  severable from the remainder of  the  1992  act.   The

superior court dismissed the plaintiffs remaining claims as moot.

The state appealed the superior courts decision to this court.

          In  State  v.  Kenaitze Indian Tribe, we  reversed  the

superior  courts  decision  and  held  that  the  provision  that

requires  the joint boards to identify nonsubsistence  areas  was

constitutional.9   We  also held that AS  16.05.258(b)(4)(B)(ii),

which conditioned eligibility for Tier II subsistence status on a

whether a users domicile was in proximity to the target resource,

was unconstitutional under sections 3, 15, and 17 of article VIII

of the Alaska Constitution because it impermissibly barred Alaska

residents from participating in subsistence activities  based  on

where they lived.10  We remanded for further proceedings.11

          The  superior court stayed the case for several  years.

In  2000,  the  Kenaitze Indian Tribe, the Ninilchik  Traditional

          Council, the Native Village of Eklutna, and the Knik Tribal

Council (collectively, the tribes) moved for summary judgment  on

their  statutory claims.  The tribes argued that the joint boards

decision  to  include  the  communities  of  Knik,  Eklutna,  and

Ninilchik  within  the Anchorage-MatSu-Kenai Nonsubsistence  Area

violated  AS  16.05.258(c)  because  the  joint  boards  did  not

correctly  apply  the  socio-economic criteria  set  out  in  the

statute.  Agreeing with the plaintiffs, Superior Court Judge Mark

Rindner  held  that  the procedure the joint boards  followed  in

including  Knik,  Eklutna, and Ninilchik in the  Anchorage-MatSu-

Kenai  Nonsubsistence Area was inconsistent with AS 16.05.258(c).

The  court further held, however, that the joint boards inclusion

of the rest of the Kenai Peninsula in the nonsubsistence area was

valid because the parties did not litigate those areas.

          The  state  appeals.  The Kenaitze Indian Tribe  cross-

appeals  the  superior  courts  ruling  that  the  joint   boards

inclusion of the rest of the Kenai Peninsula within the Anchorage-

MatSu-Kenai Nonsubsistence Area was valid.

III. DISCUSSION

     A.   Standard of Review

          We review grants of summary judgment de novo.12  When a

regulation  is  adopted  in accordance  with  the  Administrative

Procedure Act,13 and the legislature intended to give the  agency

discretion, we review the regulation by ascertaining whether  the

regulation   is   consistent  with  its   authorizing   statutory

provisions  and  whether the regulation  is  reasonable  and  not

arbitrary.14

     B.   Whether 5 AAC 99.015 Is Consistent with Its Authorizing
          Statutory Provision, AS 16.05.258(c)
          
          We first determine whether the regulation is consistent

with  its  authorizing statute,15 AS 16.05.258(c).  This  inquiry

ensures  that the agency has not exceeded the power delegated  by

the legislature.16

            The  tribes argue that the procedure the joint boards

employed  in  adopting 5 AAC 99.015 was not consistent  with  the

statutory design of AS 16.05.258(c).  The tribes acknowledge that

AS  16.05.258(c)  allows the joint boards  a  certain  degree  of

discretion  in  establishing  the  boundaries  of  nonsubsistence

areas.   But  the tribes contend that the joint boards discretion

is  not absolute.  In support of their argument, the tribes  rely

on  our  opinion in Native Village of Elim v. State.17  We  there

noted  that the Alaska Board of Fisheries discretion to  identify

fish  stocks  used  for subsistence based on  the  socio-economic

criteria listed in AS 16.05.258(c) 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 legislatures purpose to  provide  a

preference for subsistence uses.18

          The  tribes  contend  that the joint  boards  procedure

violated the guiding principles of Native Village of Elim and  is

therefore  inconsistent with the statute.  They assert  that  the

joint  boards procedure skewed the outcome  effectively  sweeping

the  [t]ribes communities into a vast nonsubsistence area without

independently  considering their distinct  characteristics.   The

tribes  argument  impliedly  attacks  two  of  the  joint  boards

procedural  decisions: first, by drawing proposed  nonsubsistence

boundaries before applying the statutory criteria; and second, by

combining  the Anchorage-MatSu proposed nonsubsistence area  with

the Kenai Peninsula proposed nonsubsistence area for the purposes

of applying the socio-economic criteria.

          Relying  on the principles enunciated in Native Village

of  Elim,  the superior court held that the joint boards  overall

          approach was inconsistent with the legislatures purpose of

providing a preference for subsistence uses.  The court  observed

that the joint boards placed the cart before the horse by drawing

large   nonsubsistence  boundaries  before  applying  the  socio-

economic  criteria.   The  superior  court  noted  that  such  an

approach  fundamentally diminishes the relevance of the  criteria

with respect to individual communities, which in turn potentially

dilutes otherwise recognizable subsistence characteristics.   The

superior  court further determined that AS 16.05.258(c)  required

the  joint  boards to apply the . . . socio-economic criteria  to

individual areas or communities, evaluate the results and  [then]

derive a . . . nonsubsistence classification before dealing  with

boundaries.  (Original emphasis.)

          On  appeal,  the  state argues that the superior  court

erred in ruling that the joint boards procedure for adopting  its

regulation  was  inconsistent with AS  16.05.258(c).   The  state

contends  that  AS 16.05.258(c) does not specify a procedure  for

the  joint boards to follow and grants the joint boards a certain

amount   of   discretion  to  decide  when  in  the  process   of

establishing  nonsubsistence areas the  joint  boards  may  start

drawing boundaries.

          The  states  arguments  are  persuasive.   Indeed,   AS

16.05.258(c)  does  not specify a particular  procedure  for  the

joint  boards  to  follow.  The statute only requires  the  joint

boards to consider the relative importance of subsistence in  the

context   of   the   totality  of  the  following  socio-economic

characteristics to identify nonsubsistence areas:

          (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.
               
Alaska Statute 16.05.258(c) does not expressly preclude the joint

boards  from  drawing  starting boundaries  before  applying  the

criteria, nor does it specify the order in which the joint boards

must apply the criteria.19

          The  joint boards decision to start with nonsubsistence

boundaries before applying the criteria was not inconsistent with

AS  16.05.258(c).  In Native Village of Elim, we observed that AS

16.05.258(c)   allows  the  joint  boards  discretion   to   draw

boundaries that are appropriate for a given set of circumstances.20

We  approvingly cited an informal opinion of the attorney general

discussing the nonsubsistence criteria of AS 16.05.258(c).21   It

stated that the joint boards may choose almost any boundary as  a

starting point for their deliberations.22

          Although  they  encompass relatively large  areas,  the

boundaries  chosen by the joint boards as a starting  point  here

were  not  improper.   The  joint  boards  derived  the  starting

boundaries  for the nonsubsistence areas from the  boundaries  of

what  they had previously classified as non-rural areas, per  the

          1986 subsistence law limiting subsistence use to residents

domiciled  in rural areas of the state.23  The attorney  generals

informal opinion noted that the statutory criteria set out in  AS

16.05.258(c) are substantially similar to the regulatory criteria

adopted  by  the joint boards to determine whether  a  particular

area  of  Alaska was rural under the 1986 subsistence law.24   It

also  observed that in many circumstances, the new nonsubsistence

areas may not be different from the areas that were identified as

[non]rural  under  the 1986 law.25  Given the similarity  of  the

rural criteria and the subsistence criteria, the joint boards did

not exceed their discretion in using the non-rural boundaries  as

starting points for their nonsubsistence determinations.

          Ultimately, the tribes appear to argue that  beginning,

rather than ending, with a nonsubsistence boundary prejudiced the

outcome  of  the  joint boards deliberations.  But  there  is  no

constitutional  preference  for a subsistence  or  nonsubsistence

starting  point for any given community.  Nothing in the  statute

suggests  that the board must first apply the statutory  criteria

to  individual  communities, like Knik,  Eklutna,  or  Ninilchik,

before   drawing  initial  boundaries   nor  do  the   principles

enunciated   in  Native  Village  of  Elim.   Starting   with   a

nonsubsistence area did not permit the joint boards to avoid  the

responsibility of adopting boundaries reasonably related  to  the

twelve criteria.26  And starting with a nonsubsistence area  does

not   necessarily  either  dictate  an  endpoint  or  defeat  the

legislative preference for subsistence uses.27  The procedure does

not   drive  the  substance  in  this  case.   And  although  the

boundaries must be consistent with the legislative preference for

subsistence  uses, that does not mean that the preference  itself

determines  the  boundaries; if it did,  it  would  undercut  the

significance of the statutory factors.

          The  tribes  also challenge the joint boards procedural

decision  to include the tribes communities within such  a  large

geographical  area  when  applying the statutory  criteria.   The

          tribes maintain that the huge geographic area selected for

consideration could not help but dictate the outcome. . . . [A]ny

community in Alaska, even an entirely subsistence-dependent  one,

would  have no chance, if joined with Anchorage for analysis,  of

showing  its  true  character as a place  where  dependence  upon

subsistence  is  a  principal  characteristic  of  the   economy,

culture, and way of life.

          Using  the  non-rural boundaries as a guide, the  joint

boards  initially  included the communities of Knik  and  Eklutna

within  the  Anchorage-MatSu Proposed  Nonsubsistence  Area,  and

included  the  Ninilchik community and the Kenaitze Indian  Tribe

within  the Kenai Peninsula Proposed Nonsubsistence Area.  During

deliberations, the joint boards decided to first apply  criterion

eleven   (AS   16.05.258(c)(11))  to   each   of   the   proposed

nonsubsistence  areas.  Alaska Statute 16.05.258(c)(11)  required

the joint boards to consider the geographic locations where those

domiciled  in  the area or community hunt or fish.28   The  joint

boards then decided to apply the other criteria to the geographic

locations   identified  by  criterion  eleven.    When   applying

criterion  eleven to the Anchorage-MatSu Proposed  Nonsubsistence

Area,  the  joint boards decided to combine that  area  with  the

Kenai  Peninsula  Proposed Nonsubsistence  Area  because  of  the

subsistence use patterns of Anchorage residents.29

          The   tribes  argue  that  the  joint  boards   applied

criterion eleven in a manner unintended by AS 16.05.258(c).  They

argue  that  the  statute does not direct [the joint  boards]  to

establish  the  boundaries  of nonsubsistence  areas  based  upon

criterion   11.    The  state  argues  that  the   joint   boards

deliberations  and  written  findings  show  that  although   the

[b]oards  started with [criterion eleven], by the end,  they  had

considered all twelve.  The states argument is persuasive.  As we

stated above, the statute does not dictate the order in which the

joint  boards  must  consider the statutory  criteria  when  they

determine a nonsubsistence boundary, only that they consider  the

          relative importance of subsistence in the context of the totality

of the socio-economic criteria.30

          The  joint  boards decision to use large nonsubsistence

starting areas or even to combine the two proposed areas did  not

exceed  their  discretion.  Although the  boundaries  encompassed

relatively large areas, we recognized in Native Village  of  Elim

that  an  area  or  community  as  the  words  are  used  in   AS

16.05.258(c),   may   encompass  several   subdistricts   grouped

together.31  It is within the joint boards discretion to  combine

discrete  subareas  for  the purposes of applying  the  statutory

criteria.

          Ultimately, the size of the geographical area that  the

joint  boards used in applying the statutory criteria appears  to

be  relevant only to the extent that some of the information  the

joint  boards relied on was also organized by these larger areas.

For  example, the reports of the Alaska Department  of  Fish  and

Game (ADF&G) relied on by the joint boards covered the Anchorage-

MatSu  Proposed  Nonsubsistence  Area  and  the  Kenai  Peninsula

Proposed Nonsubsistence Area, respectively, and contained only  a

small  amount  of information about the tribes communities.   But

the  joint  boards  also considered public testimony  from  tribe

members  and  other evidence submitted by the tribes about  their

particular communities.  We will, however, discuss in Part  III.C

whether  the joint boards considered evidence available  to  them

when they made their subsistence determinations.

     C.   Whether 5 AAC 99.015 Is Reasonable and Not Arbitrary

          The   next  inquiry  is  whether  the  regulation   was

reasonable   and  not  arbitrary.   In  determining  whether   an

administrative regulation is reasonable or arbitrary, we look  at

the  agencys  process  for  adopting  the  regulation.32   Review

consists primarily of ensuring that the agency has taken  a  hard

look  at  the  salient  problems and  has  genuinely  engaged  in

reasoned decision making33 or determining whether the agency  has

failed to consider an important factor.34

          The tribes contend that the joint boards regulation was

arbitrary  because the joint boards applied few, if any,  of  the

statutory   criteria   to  the  Knik,  Eklutna,   and   Ninilchik

communities.   They  claim that the joint  boards  did  not  have

enough  information about the communities to engage  in  reasoned

decision making.

          The  state argues that the statute does not require the

joint  boards to have information about every criterion for every

community before making a nonsubsistence determination.  Although

several   board  members  acknowledged  that  they   had   little

information  about Knik, Eklutna, and Ninilchik,  and  the  joint

boards  final  decisional  document stated  as  much,  the  state

contends  that a lack of information on any particular criterion,

or  on several criteria, does not prevent [the joint boards] from

making a determination of subsistence-dependency.  We agree.

          Although  the  joint  boards considered  ADF&G  reports

which  included little information on the three communities,  the

tribes  had  ample opportunity to present evidence to  the  joint

boards.  The joint boards met from November 1 through November 7,

1992.   On  November 2 the joint boards conducted public hearings

at which some tribe members testified.  Each tribe also submitted

written comments opposing the proposed nonsubsistence areas,  and

submitted,  along  with other evidence, the  results  of  surveys

completed by tribe members.

          We  do not interpret AS 16.05.258(c) to have imposed an

implicit  affirmative duty on the joint boards in  this  case  to

gather  additional information on these communities before making

a  nonsubsistence  determination. The  explicit  language  of  AS

16.05.258(c)  certainly  does not require  the  joint  boards  to

direct  ADF&G to submit more information.35  Nor have the  tribes

directed our attention to any provision in the statute that would

have required the joint boards to do so.

          Assuming   for   the   sake  of  discussion   that   an

administrative agency could not validly promulgate  a  regulation

          if the information needed for a reasonable consideration of the

statutory factors were altogether absent,36 that is certainly not

the  situation  here.   The information proffered  to  the  joint

boards was not so altogether lacking that the joint boards had  a

duty   to   direct   ADF&G  to  submit  more   information.    An

administrative agency may make a reasonable decision even  though

the information available to it is limited; complete certainty is

not required.37

          The  relevant  inquiry is therefore whether  the  joint

boards engaged in reasoned decision making, using the information

available to them.  The tribes contend that the joint boards  did

not  give  a hard look at all of the evidence presented  to  them

about the three communities.  We disagree.

          1.   Knik and Eklutna

          We  first consider whether the joint boards gave a hard

look  at  the Knik and Eklutna communities, given the information

available  to  the joint boards.38  Based on our  review  of  the

record,  it  appears to us that the tribes offered evidence  that

arguably   fit   within  these  statutory  criteria:   subsection

.258(c)(1) (social and economic structure); subsection .258(c)(3)

(extent and kinds of employment for wages); subsection .258(c)(4)

(amount  and distribution of cash income); subsection  .258(c)(6)

(variety   of   fish   and  game  used);  subsection   .258(c)(8)

(percentage   of  those  domiciled  in  the  area  or   community

participating  in hunting and fishing activities  or  using  wild

fish and game); subsection .258(c)(9) (harvest levels of fish and

game);  subsection  .258(c)(10) (cultural, social,  and  economic

values  associated  with the taking and use of  fish  and  game);

subsection   .258(c)(11)  (geographic   locations   where   those

domiciled  in the area or community fish or hunt); and subsection

.258(c)(12) (extent of sharing and exchange of fish and game).

          The  joint boards also heard testimony about  Knik  and

Eklutna  from Dr. James A. Fall, a regional program  manager  for

the  Alaska Department of Fish and Game, Division of Subsistence.

          Although Dr. Fall did not mention all of the statutory criteria,

he  presented  some evidence that fit within  many  of  the  same

criteria   as   the   tribes   evidence.    The   Anchorage-MatSu

Nonsubsistence Area proposal prepared by ADF&G briefly  mentioned

that the residents of Knik and Eklutna still consider the use  of

wild  resources  to  be  of cultural, economic,  and  nutritional

importance.

          The  joint  boards  members did not explicitly  mention

each  criterion during their deliberations on Knik  and  Eklutna,

nor  were  they required to do so, but their discussion  reflects

that  they gave a hard look at the available evidence.  The chair

of  the  joint  boards acknowledged that he had read  the  tribes

evidence  twice,   characterizing some  of  it  as  difficult  to

understand.  The chair specifically discussed the tribes evidence

on  income  patterns, the percentage of food supply  coming  from

wild  fish  and game per household, and the extent to  which  the

tribes  were  dependent on subsistence foods.  After  considering

the  tribes evidence and Dr. Falls testimony, the chair concluded

that  he  did  not see any trends that made him  think  Knik  and

Eklutna were distinguishable from nonsubsistence areas.

          The  tribes argue that to the limited extent the  joint

boards  considered  their communities, the joint  boards  focused

exclusively on the communities economies.  But although the board

members  comments on Knik and Eklutna primarily  focused  on  the

communities  economic characteristics, many of the board  members

also  expressed general concerns about the effect on the  culture

and the traditions of the tribes  implying that the board members

were cognizant of the tribes culture and lifestyles and sensitive

to them.

          Based  on our review of the joint boards deliberations,

we  conclude  that  the joint boards gave  a  hard  look  at  the

evidence  regarding  the  Knik  and  Eklutna  communities.    The

regulations  inclusion of Knik and Eklutna within the  Anchorage-

MatSu-Kenai Nonsubsistence Area was therefore reasonable and  not

arbitrary.

          2.   Ninilchik

          We also conclude that the joint boards gave a hard look

at  the  evidence  relevant  to  the  Ninilchik  community.   The

Ninilchik  Indian  Council presented evidence  of  the  Ninilchik

residents   unemployment   rates,   relevant   under   subsection

.258(c)(3)  (extent and the kinds of employment for wages).   The

tribe  also presented evidence germane to the following statutory

criteria: subsection .258(c)(6) (variety of fish and game  used);

subsection .258(c)(8) (percentage of those domiciled in the  area

or  community participating in hunting and fishing activities  or

using  wild fish and game); subsection .258(c)(9) (harvest levels

of  fish and game); subsection .258(c)(10) (cultural, social, and

economic  values associated with the taking and use of  fish  and

game); and subsection .258(c)(12) (extent of sharing and exchange

of  fish  and game).  A Ninilchik resident also testified  before

the joint boards.

          Dr.  Fall presented evidence to the joint boards on the

social  and  economic  structure and the  areas  harvest  levels.

ADF&Gs Kenai Peninsula Nonsubsistence Area proposal reported  the

yields for commercial fishers in Ninilchik, Ninilchiks per capita

wild  food  harvest for 1982, and the extent of  sharing  between

households.

          During  their deliberations on Ninilchik, board members

shared  personal  observations of the  community.   Board  Member

Franzmann noted that Ninilchik was a very commercial city.  Other

board  members  noted Ninilchiks economic growth, and  the  areas

relative affluence.  The chair also discussed the incomes of  the

Ninilchik   residents.   Board  Member  Wallen   commented   that

Ninilchiks harvest levels fell somewhere in between most  of  the

communities  on the Kenai.  Board Member Lyons also commented  on

the  tribes cultural traditions, noting the testimony of a  elder

Ninilchik resident who was distressed by the increased amount  of

commercial fisheries.

          The  tribe challenges the joint boards reliance on  the

personal   unsubstantiated  opinions  of  board  members.    This

argument is without merit because board members may rely on their

own    expertise   to   assist   them   in   making   subsistence

determinations.39

          The  tribe  has not pointed to any particular  evidence

before the joint boards that the boards did not consider.  Having

reviewed  the  joint boards deliberations, we conclude  that  the

joint  boards  gave  a  hard look at the evidence  regarding  the

Ninilchik  community.   We therefore hold  that  the  regulations

inclusion    of    Ninilchik    in   the    Anchorage-MatSu-Kenai

Nonsubsistence Area was reasonable and not arbitrary.

     D.   Whether  It Was Reasonable and Not Arbitrary To Include
          the  Kenai  Peninsula  Within the Anchorage-MatSu-Kenai
          Nonsubsistence Area
          
          The  superior court judgment awarding summary  judgment

to  the  tribes declared 5 AAC 99.015(a)(3) invalid to the extent

the  regulation  included Knik, Eklutna,  and  Ninilchik  in  the

Anchorage-MatSu-Kenai Nonsubsistence Area.  But the judgment held

that  the  regulations inclusion of the Kenai  Peninsula  in  the

nonsubsistence  area, except for the community of  Ninilchik  and

other  areas already excepted by the regulation, was not invalid.

It  stated  that  these  other areas were not  litigated  by  the

parties.

          The  Kenaitze  Indian Tribe, the original plaintiff  in

this  suit, has filed a cross-appeal from this ruling; it  argues

that  at every stage in the ten-year litigation, it has contested

the  validity  of the [j]oint [b]oards inclusion  of  the  tribes

hunting  and  fishing  grounds within  the  Anchorage-MatSu-Kenai

nonsubsistence area.               It seems to be correct, as the

tribe  argues and the state concedes, that the tribe did litigate

this  issue  in  the  superior court.  Before  the  joint  boards

convened in November 1992, the Kenaitze Indian Tribe, along  with

the  Ninilchik Traditional Council, submitted to the joint boards

written comments that asked the joint boards to exclude the Kenai

          Peninsula from any nonsubsistence area under AS 16.05.258(c).  In

December  1992, after the joint boards established the Anchorage-

MatSu-Kenai Nonsubsistence Area, the Kenaitze Indian Tribe  filed

an  amended complaint seeking a declaratory judgment invalidating

the  joint  boards  inclusion of the tribes hunting  and  fishing

areas  within  the  nonsubsistence area.  In  February  2002  the

Ninilchik Traditional Council, the Native Village of Eklutna, and

the Knik Tribal Council intervened.  Many of the arguments in the

tribes motion for summary judgment applied to the members of  all

of  the  tribes,  but  some  parts  of  the  motion  specifically

addressed  the Kenaitze Indian Tribes claim that its hunting  and

fishing  grounds  on  the Kenai Peninsula should  not  have  been

included  in  the  nonsubsistence area.  Because  the  issue  was

litigated  in  the superior court, one possible remedy  for  this

error would be remand to the superior court.

          But  given  the  long  delays in this  litigation  (the

Kenaitze Indian Tribe first filed suit in 1991) and the fact that

the  joint  boards regulation was promulgated  in  1992,  we  are

reluctant to remand to the superior court to carry out  the  same

review that we have already conducted.  We therefore think it  is

better in this case for us to consider the merits of whether  the

regulation is invalid, rather than remand to the superior  court,

with the potential for further appeals.

          As  part  of our consideration of the validity  of  the

regulation  with respect to Ninilchik, Knik, and Eklutna  in  the

states  appeal  discussed above, we have  reviewed  the  evidence

before  the  joint boards and the comments of the  board  members

about  evidence pertaining to the Kenaitze Indian Tribe  and  the

Kenai Peninsula.

          The  ADF&G report covering the Kenai Peninsula included

information  on  the City of Kenai, where many  Kenaitze  members

reside.   The  information pertained to  some  of  the  statutory

criteria, including harvest levels and the percentage of City  of

Kenai residents engaging in hunting and fishing activities.   The

report  specifically  mentions  the  Kenaitze  Indian  Tribe   in

discussing  AS 16.05.258(c)(10) (cultural, social,  and  economic

values associated with the taking and use of fish and game),  and

in noting that the tribes use of fish and game may reflect values

associated with [Denaina] cultural traditions.

          The  tribe submitted to the joint boards evidence  that

included  a  statement  opposing  the  classification   of   Game

Management  Unit  15  (encompassing the  majority  of  the  Kenai

Peninsula)  as  a  nonsubsistence area.  The  statement  included

information that bore on several of the statutory criteria.   The

statement also summarized the results of surveys taken  by  tribe

members.  The surveys themselves were also submitted to the joint

boards.  Some of the tribes members also testified in the  public

hearings the joint boards conducted.

          Dr.  Fall testified that he did not have much  more  to

add to the public testimony.  He also noted that the Division  of

Subsistence  had never collected any information specifically  on

members  of  the  Kenaitze tribe because  the  division  did  not

organize  its research in that manner.  The only information  Dr.

Fall had on the tribe was contained in studies conducted for  the

City of Kenai.  The joint boards also received information on the

tribes educational fishery.

          It  is evident from the joint boards deliberations that

the  boards  members  considered the public testimony  and  other

evidence  the  tribe  submitted.   After  reviewing  the   public

testimony,  Board  Member Elias characterized  the  testimony  as

inconsistent, particularly the information the tribe provided  on

its  members incomes.  Board members also discussed the testimony

of  a tribe member emphasizing the importance of maintaining  the

tribes educational fishery.

          But   ultimately   the  joint  boards  had   difficulty

attempting to identify a discrete, geographical area in which the

Kenaitze  Indian Tribe was located for the purposes  of  applying

the  statutory  criteria.   Board  Member  Elias  commented  that

members of the tribe have moved all over, and theyve dispersed in

an area where you cannot define a single, local area to where the

tribe does hold a ground or an area.  Board Member Carlisle  also

noted that the difficulty . . . in trying to isolate the Kenaitze

group  is  that they have spread out considerably  on  the  Kenai

Peninsula.  They dont have a core village, if you will,  such  as

Ninilchik.

          Based on our review of the record, we conclude that the

joint boards gave a hard look at the evidence presented and  that

the  regulation is not invalid for failing to designate the Kenai

Peninsula as a subsistence area.  A remand is not needed  because

the  issue does not require the resolution of any disputed issues

of  material fact  as evidenced by the plaintiffs willingness  to

submit the issue to the superior court on summary judgment.

IV.  CONCLUSION

          We  consequently  REVERSE  the  summary  judgment  that

declared invalid the inclusion of Knik, Eklutna, and Ninilchik in

the  Anchorage-MatSu-Kenai Nonsubsistence Area,  and  AFFIRM  the

summary  judgment that declared valid the inclusion of the  Kenai

Peninsula in the nonsubsistence area.

_______________________________
     1    AS 16.05.258.

     2     Ch.  1,  2, SSSLA (Second Special Session Laws Alaska)
1992.

     3    Ch. 1,  2, SSSLA 1992; AS 16.05.258(c).

     4     AS  16.05.258(c)(1)-(13).  We set  out  the  statutory
criteria in Part III.B.

     5    5 AAC 99.015.

     6    5 AAC 99.015(a)(3).

     7     State  v.  Kenaitze Indian Tribe, 894  P.2d  632,  635
(Alaska 1995).

     8    Id.

     9     Id.  at  642 (upholding AS 16.05.258(c),  the  statute
requiring boards to identify nonsubsistence areas by regulation).

     10    Id. at 638-39.

     11    Id. at 642.

     12    Interior Alaska Airboat Assn v. State, Bd. of Game, 18
P.3d 686, 689 (Alaska 2001).

     13    AS 44.62.

     14    Interior Alaska Airboat Assn, 18 P.3d at 689-90.

     15    Id.

     16     Stepovak-Shumagin  Set Net  Assn  v.  State,  Bd.  of
Fisheries, 886 P.2d 632, 636-37 (Alaska 1994) (quoting  Kelly  v.
Zamarello, 486 P.2d 906, 911 (Alaska 1971)).

     17     Native  Vill. of Elim v. State, 990  P.2d  1  (Alaska
1999).

     18    Id. at 9-10.

     19    AS 16.05.258(c).

     20    990 P.2d at 11.

     21    Id. at 10.

     22     1992 Informal Op. Atty Gen. 77.  The weight we accord
to  opinions  of  the  attorney general  is  largely  within  our
discretion.  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
are not controlling but are entitled to some deference).

     23    Ch. 52,  9, 11, SLA 1986, codified at AS 16.05.940(22),
(33)  (1986).  This provision of the subsistence law  was  struck
down  in  McDowell v. State, 785 P.2d 1, 9 (Alaska 1989) (holding
unconstitutional the residency criterion used  in  the  1986  act
which  conclusively excludes all urban residents from subsistence
hunting    and    fishing   regardless   of   their    individual
characteristics).

     24    1992 Informal Op. Atty Gen. 77.

     25    Id.

     26    Native Vill. of Elim, 990 P.2d at 9-10.

     27     Subsistence  hunting and fishing have  had  statutory
priority over nonsubsistence activities since 1978.  Ch. 151,  4,
5, SLA 1978.

     28    AS 16.05.258(c)(11).

     29    Board Member Bosworth justified combining the two areas
because of the use patterns of Anchorage residents:

          [W]e will be describing initially, under this
          approach, the use pattern by residents of the
          Anchorage  area, and we will  find  out  that
          they go both north into the proposal for  the
          MatSu/ Anchorage area, and also south down to
          Kenai,  and it might just make sense that  we
          get  that  entire pattern out  on  the  table
          right  from  the  start, and then  work  with
          that.
          
     30    AS 16.05.258(c).

     31    Native Vill. of Elim, 990 P.2d at 10.

     32    Interior Alaska Airboat Assn v. State, Bd. of Game, 18
P.3d 686, 693 (Alaska 2001).

     33    Id. at 690.

     34    Id. at 693.

     35    AS 16.05.258(c) provides in part:

          The boards may not permit subsistence hunting
          or  fishing  in  a nonsubsistence  area.  The
          boards,  acting  jointly, shall  identify  by
          regulation  the  boundaries of nonsubsistence
          areas.  A nonsubsistence area is an  area  or
          community  where dependence upon  subsistence
          is  not  a  principal characteristic  of  the
          economy, culture, and way of life of the area
          or   community.    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 . . . .
          
     36     See  Hammond v. N. Slope Borough, 645 P.2d  750,  759
(Alaska  1982)  (upholding decision of  commissioner  of  natural
resources  that  oil  lease  was in  states  best  interests  and
explaining that if the Commissioner had no information whatsoever
on the effect of oil leasing on the subsistence lifestyles, it is
questionable whether he could reasonably decide that the proposed
sale   was  in  the  states  best  interests.  However,  complete
certainty is not required.).

     37     Stepovak-Shumagin  Set Net  Assn  v.  State,  Bd.  of
Fisheries,   886   P.2d  632,   641-42  (Alaska  1994)   (holding
regulation  not  arbitrary even though joint boards  had  limited
information when promulgating it); Alaska Survival v. State, Dept
of  Natural  Res., 723 P.2d 1281, 1287 (Alaska  1986)  (upholding
departments decision to proceed with lottery to dispose  of  land
after  data  on  which  decision was  based  had  been  revised);
Hammond, 645 P.2d at 759-60 (holding that commissioner of natural
resources  finding that lease sale was in states  best  interests
was  reasonable  despite lack of information  concerning  adverse
effects of sale).

     38     The joint boards considered Knik and Eklutna together
because both communities had similar use patterns.

     39    State v. Hebert, 743 P.2d 392, 397 (Alaska App. 1987),
affd,  803  P.2d  863  (Alaska 1990); see  also  2  Am.  Jur.  2d
Administrative Law  209 (2003).