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State v. Dupier (08/12/2005) sp-5932
State v. Dupier (08/12/2005) sp-5932
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,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| STATE OF ALASKA,
| ) |
|
| ) Supreme Court No. S-
11140 |
|
Petitioner, | ) Court of
Appeals Nos. A-8270/8271/8272 |
|
| ) |
|
v. | ) Superior Court Nos.
3HO-S02-00061 CR, |
|
| ) 3HO-S01-00460 CR,
3HO-S01-00145 CR |
|
JOHN DUPIER, RODMAN E. | ) |
|
MILLER, and PHILLIP J. | ) O P I N I O
N |
|
TWOHY III, | ) |
|
| ) [No. 5932 - August
12, 2005] |
|
Respondents. | ) |
|
| ) |
|
|
|
|
Petition for Hearing from the Court of
Appeals of the State of Alaska, on appeal
from the District Court of the State of
Alaska, Third Judicial District, Homer, M.
Francis Neville, Judge.
Appearances: Jon K. Goltz, Assistant
Attorney General, Anchorage, and Gregg D.
Renkes, Attorney General, Juneau, for
Petitioner. Michael Hough, Homer, for
Respondents Dupier and Twohy. Melvin M.
Stephens II, Kodiak, for Respondent Miller.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
FABE, Justice.
I. INTRODUCTION
The Commercial Fisheries Entry Commission (CFEC)
charged three federally permitted fishers with landing their
halibut and sablefish catches in Alaska without state permits.
The fishers did not attempt to fish in state waters. The fishers
argue that the CFEC exceeded its authority when it required them
to possess interim-use permits to land their catches in Alaska.
They also argue that the State is preempted by federal law from
requiring federal halibut and sablefish permit holders to obtain
state permits to land their catches in Alaska. In addition, the
fishers assert that the States permit requirements violate
certain provisions of the federal constitution. We hold that the
State did not exceed its authority when it required the fishers
to possess interim-use permits. We additionally conclude that
federal law does not preempt the States permit requirements, and
that the permit requirements do not violate the federal
constitution.
II. FACTS AND PROCEEDINGS
A. Facts and Trial Court Decision
The facts of this case are undisputed. Appellees John
Dupier, Rodman E. Miller, and Philip J. Twohy each held
Individual Fishing Quotas (IFQs) to fish in federal waters. In
2001, after fishing legally in federal waters, the fishers
separately attempted to land their catches in Alaska without
first obtaining state permits from the Commercial Fisheries Entry
Commission (CFEC). None of the fishers attempted to fish in
state waters. The State charged the fishers with possessing
commercially taken fish in state waters without having a valid
interim-use permit, in violation of 20 AAC 05.110.1
The Alaska Legislature has authorized the CFEC to issue
three types of permits. The first type, entry permits, are
issued for fisheries that have been subject to limited entry
because they are at risk.2 A second type of permit, the landing
permit, is designed for fishers landing their catches in Alaska.3
The Alaska Legislature gave the commissioner of Fish and Game
discretion to authorize the CFEC to issue landing permits,4 but
the commissioner had not done so prior to 2003; therefore, the
CFEC had never issued a landing permit when the respondents
received citations. The CFEC is also authorized to issue a third
type of permit, the interim-use permit.5 The purpose and scope
of interim-use permits are the central issue in this litigation.
The court of appeals summarized the charges against
Dupier, Miller, and Twohy and the trial court proceedings as
follows:
Initially, all three appellees were charged
with failing to have an interim-use permit
under 20 AAC 05.110(c), and the State seized
the proceeds of their catches. Later, the
State conceded that it could not forfeit
fishing proceeds under 20 AAC 05.110(c)
because a first violation of that regulation
was only punishable by a fine of no more than
$5,000.1 The State then charged each
appellee with an additional count of failing
to have a landing permit under AS 16.05.675.
Courts are required to forfeit the fish taken
or retained as a result of a violation of
that statute.2
The appellees all filed motions to
dismiss. Judge Neville granted those
motions, ruling that the appellees could not
be convicted under AS 16.05.675 because the
CFEC had never issued landing permits and the
appellees could not get them. Judge Neville
also found that the appellees could not be
convicted under 20 AAC 05.110(c) because that
regulation was invalid. Judge Neville gave
several reasons for this conclusion: (1) the
legislature had intended fishers landing fish
caught in federal waters to get landing
permits, not interim-use permits; (2) 20 AAC
05.110(c) was inconsistent with the
legislative purpose behind interim-use
permits, which were intended to authorize
fishers to operate specific gear in specific
fisheries managed by the state; and (3) by
requiring fishers harvesting fish in federal
waters to hold permits that had been designed
for fishers operating in state fisheries, the
CFEC had created unintended conflicts with
federal law.[6]
_________________________
1 AS 16.43.970(a).
2 AS 16.05.723.
B. Court of Appeals Decision
The court of appeals affirmed the trial courts
dismissal of the charges.7 The court of appeals concluded that
the CFEC is only authorized to issue interim-use permits to
persons fishing in areas that are potentially subject to limited
entry by the CFEC. Therefore, the court of appeals determined
that the CFEC had no authority to require fishers in federal
waters to hold interim-use permits to land their catches in
Alaska and concluded that 20 AAC 05.110(c) was an invalid
regulation.
The court of appeals also affirmed the dismissal of the
charges brought by the State under AS 16.05.675,8 concluding that
AS 16.05.675 does not require fishers to have interim-use or
entry permits, but instead directs fishers without interim-use or
entry permits to obtain landing permits.
Finally, the court of appeals applied the same analysis
to the charge against Twohy for landing sablefish as that applied
to the charges against all three respondents for landing halibut.
The court upheld the district courts dismissal of all of the
charges against all of the respondents.
C. Amendments to AS 16.43.210(a) and 20 AAC 05.110
The scope of the CFECs authority to require permits
within state waters turns on the language in the Alaska statutes
governing interim-use permits, particularly AS 16.43.210(a), but
also AS 16.43.140(a), AS 16.10.267(a)(1), and AS 16.05.675.
Following the court of appeals decision in this case, the
legislature amended AS 16.43.210(a) so that it is now clear that
the CFEC may issue interim-use permits for all Alaska fisheries,
regardless of whether the fishery is subject to limited entry.9
In this decision, we examine whether the State was authorized to
issue interim-use permits for all Alaska fisheries before the
effective date of the amendment.
In addition, the CFEC amended 20 AAC 05.110 after the
court of appeals declared it invalid. As it existed in 2001, 20
AAC 05.110 required anyone possessing fish for a commercial
purpose to have either an interim-use or entry permit card.10
Now the regulation requires either an entry permit, an interim-
use permit, or a landing permit.11 We examine whether the prior
version of the regulation was valid when the State sought to
apply it against the respondents.
III. DISCUSSION
A. Standard of Review
We review a grant or denial of a motion to dismiss de
novo.12 We also review questions of law de novo, adopting the
rule of law that is most persuasive in light of precedent, reason
and policy.13 Statutory interpretation is a question of law to
which we apply our independent judgment.14 When reviewing an
agency decision that raises questions of statutory interpretation
involving legislative intent, we review the questions
independently, applying the substitution-of-judgment standard.15
B. Overview of Fisheries Management
Alaskas fisheries are subject to a complex regulatory
system consisting of state and federal laws as well as
international agreements.16 The laws and regulations applicable
to this case are summarized below.
1. Federal regulation of fisheries
In 1976 Congress enacted the Magnuson-Stevens Fishery
Conservation and Management Act (Magnuson-Stevens Act) to manage
the fisheries found off the coast of the United States.17 The
purpose of the Magnuson-Stevens Act was to conserve and manage
fisheries within a 200-mile radius called the Exclusive Economic
Zone, or EEZ.18 The Magnuson-Stevens Act created regional
fishery management councils, including the North Pacific Fishery
Management Council, which governs the Gulf of Alaska.19 The
management councils submit fishery management plans to the
Secretary of Commerce, who then promulgates regulations based on
those plans.20
Alaskas halibut fisheries are also governed by a
convention between the United States and Canada (the Halibut
Convention).21 The Halibut Convention is implemented in the
United States by the Northern Pacific Halibut Act of 1982
(Halibut Act).22 The Halibut Act grants authority to the North
Pacific Fishery Management Council (established by the Magnuson-
Stevens Act) to develop regulations for the management of Alaskas
halibut fisheries.23 These regulations set forth the individual
fishing quota program in which Dupier, Miller, and Twohy were
participating when they received citations from the CFEC.24
2. State regulation of fisheries
The Alaska Legislature enacted the Limited Entry Act25
in 1973 after finding that use levels in Alaskas fisheries had
become high enough to impair the economic welfare of the
fisheries of the state, the overall efficiency of the harvest,
and the sustained yield management of the fishery resource.26
The Act created the CFEC and charged it with regulating entry
into the states commercial fisheries.27 The CFECs permitting
scheme is the primary mechanism for enforcing the Limited Entry
Act. We examine the scope of the CFECs authority under the
Limited Entry Act below.
C. The CFEC Did Not Exceed Its Authority by Requiring the
Respondents To Possess Interim-Use Permits Under 20 AAC
05.110.
Dupier, Miller, and Twohy argue that the CFEC exceeded
its authority when it required them to possess interim-use
permits under 20 AAC 05.110. In our analysis of this claim, we
first examine whether state law authorized the CFEC to issue
interim-use permits for state fisheries not subject to limited
entry. We then turn to the question whether state law authorized
the CFEC to require interim-use permits for fishers who sought to
fish solely in federal waters but who desired to land their fish
in Alaska.
1. Alaska law authorized the CFEC to issue interim-
use permits for state fisheries not subject to
limited entry.
If the CFEC was not authorized to issue interim-use
permits for fisheries in which limited entry was neither in place
nor pending, it was not authorized to require them for the
respondents. For this reason, we begin our analysis by examining
whether the CFEC was authorized to issue interim-use permits for
state fisheries not subject to limited entry.
As it existed in 2001, the Alaska statute governing
interim-use permits, AS 16.43.210, stated:
Interim-use permit; qualifications. (a)
Pending the establishment of the maximum
number of entry permits under AS 16.43.240
and the issuance of entry permits under AS
16.43.270, the [CFEC] shall issue interim-use
permits under regulations adopted by the
commission for each fishery, not subject to a
moratorium under AS 16.43.225, to all
applicants who can establish their present
ability to participate actively in the
fishery for which they are making
application.[28]
Whether the CFEC was authorized to require interim-use permits
turns in part on the meaning of the word pending. The meaning of
that word is ambiguous. The respondents argue that this statute
only authorized the CFEC to issue interim-use permits under two
circumstances: first, as the initial phase in a limited entry
scheme, and second, after the maximum number of entry permits has
been established but before all the authorized permits have been
issued for a given fishery. In particular, the respondents argue
that the word pending indicates that the legislature intended
interim-use permits to be issued for fisheries in which limited
entry programs were either in place or imminent. The State, on
the other hand, argues that the word pending indicates that the
legislature intended the permits to be issued for all fisheries
where the establishment of the maximum number of entry permits
and the issuance of entry permits was not accomplished in other
words, for every fishery not limited to entry.29 We find the
States interpretation to be more persuasive.
The starting point for our analysis of the CFEC entry
permit system is AS 16.43.140, the statute requiring either a
valid entry permit or an interim-use permit for commercial
fishers in Alaskas fisheries.30 This statute is one of three
enabling statutes cited in 20 AAC 05.110, the regulation under
which the CFEC initially charged the respondents for not having
interim-use permits.31 The coverage of AS 16.43.140(a) is
comprehensive. It applies to the commercial taking of fishery
resources without limitation.32 It thus applies to all
commercial fisheries regardless of whether they are or will be
fisheries in which entry is limited.
Until 1977, AS 16.43.140 operated in conjunction with
state statutes requiring fishers to obtain gear licenses in order
to operate fishing gear in Alaskas commercial fisheries. From
the time the entry permit program was established in 1973 until
gear licenses were abolished, commercial fishers were required to
obtain either entry permits or interim-use permits, as well as
gear licenses.33 The legislature abolished gear licenses in
1977.34 After gear licenses were abolished, fishers were
required to obtain only entry permits or interim-use permits.
All commercial fishers fishing for halibut in state
waters were required to have gear licenses before the statute
requiring gear licenses was repealed, and the CFEC has required
all commercial fishers to have interim-use permits since 1974.
The legislative history indicates that the legislature abolished
gear licenses to eliminate duplication between the entry permit
program and the gear licensing program. For instance, Governor
Hammonds transmittal letter to the legislature stated: The bill
would eliminate the currently required gear license and
commercial fishing license for holders of entry permits and thus
simplify the paper-work of license applications for all
concerned, especially the fishermen.35 Similarly, a letter from
the CFEC chairperson to the Senate Resources Committee
chairperson stated: The new system we are proposing will result
in eliminating State agency duplication of time and effort,
create a much needed data base, and most important will eliminate
much of the bureaucratic paperwork for the fishermen.36 This
history indicates that the legislature intended that interim-use
permits serve the same broad purposes that gear licenses had
previously served.
The proposition that the legislature intended interim-
use permits to serve the purposes of gear licenses is further
supported by the fee structure for interim-use permits. When the
legislature abolished gear licenses, the fees that had previously
been collected from gear licenses were revised and applied to
entry permits and interim-use permits.37 Taken together, this
legislative history indicates that when the legislature abolished
gear licenses, it anticipated that the CFEC would issue interim-
use permits to commercial halibut fishers even in state fisheries
where limited entry was not pending, since gear licenses had
previously been required in non-limited fisheries. We therefore
conclude that the CFEC was authorized to issue interim-use
permits for persons fishing in all state fisheries. We next
examine whether the CFEC was authorized to require fishers in the
EEZ to possess interim-use permits to land their fish in Alaska.
2. Alaska law authorized the CFEC to require fishers
in the EEZ to possess interim-use permits to land
their fish in Alaska.
Having determined that the CFEC was authorized to issue
interim-use permits for fisheries not subject to limited entry,
we turn to the question whether the CFEC was authorized to
require interim-use permits for fishers who operated gear solely
in the EEZ but wished to land their catches in Alaska. We
conclude that the CFEC was authorized to require interim-use
permits for federally permitted fishers landing their catches in
Alaska.
a. Interim-use permits serve purposes other than
authorizing gear operation.
As discussed above, AS 16.43.140 prohibits any person
from operating gear in the commercial taking of fishery resources
without a valid entry permit or interim-use permit.38 Alaska
Statute 16.43.210 requires applicants for interim-use permits to
establish their present ability to participate actively in the
fishery for which they are making application.39 The respondents
argue that the legislature designed interim-use permits for
active participants, or gear operators, in a given fishery, not
for fishers seeking to land fish caught elsewhere. The State
argues that interim-use permits serve purposes in addition to
authorizing the operation of gear, including authorization for
possession and landing. Our examination of various provisions in
the Limited Entry Act reveals that interim-use permits do serve
purposes in addition to authorizing gear operation.
For instance, AS 16.10.267(a) requires any fisher
selling fish to possess a landing permit, entry permit, or
interim-use permit.40 Thus, fishers who wish to sell fish must
possess a CFEC permit even if they do not intend to operate gear
in state fisheries. An interim-use permit will satisfy the
statute, regardless of whether the permit holder plans to operate
gear. Moreover, when AS 16.10.267(a) was adopted in 1982, it
codified, as to sales, and ratified an existing CFEC regulation
that prohibited fishers from possessing fish within state waters
for a commercial purpose without an interim-use permit.41 Under
the regulation, commercial purpose included the sale and
transportation of fish.42 The regulation was specifically aimed
at fish taken beyond the waters of the state. The CFEC finding
accompanying the regulation explained that the regulation was
necessary because otherwise a fisherman taking fish and shellfish
in state waters need only claim that they were taken elsewhere in
order to avoid state law.43 Thus, AS 16.10.267(a), together with
the regulation that it partially codified and ratified,
illustrates that interim-use permits serve purposes in addition
to authorizing the operation of gear.44
b. The legislature intended landing permits to
have a narrow purpose not applicable to the
respondents in this case.
Dupier, Miller, and Twohy argue that the State should
have required them to possess landing permits, rather than
interim-use permits.45 But landing permits were created in
198446 for a narrow class of fishers that does not include the
respondents. This narrow scope of landing permits is delineated
in a letter from the Attorney General to Governor Sheffield
regarding the amendment to the Limited Entry Act that created
landing permits.47 The letter indicates that the legislature
created landing permits after two fishers who were legally
fishing for salmon in federal waters attempted to land their
catches in Alaska. When they were informed that they would not
be permitted to land in Alaska because they did not possess the
appropriate state permits, they threatened to sue the state.
Rather than litigate the issue, the Attorney General recommended
that the legislature create a permit to accommodate fishers in
this situation.48
The difference between the fishers who prompted the
creation of landing permits and the respondents in this case is
that the 1984 fishers were fishing for salmon. Alaskas salmon
fisheries had been subject to limited entry by the state, so the
two salmon fishers could not obtain interim-use permits or entry
permits, which were distributed on a limited basis and would have
permitted them to fish for salmon in state waters. In contrast,
the CFEC has not limited entry to Alaskas halibut fisheries, so
the respondents in this case could have procured interim-use
permits if they had applied for them.49
This history indicates that landing permits were
intended for the narrow situation embodied by the 1984 salmon
fishers: fishers holding permits to fish in federal waters who
are precluded from obtaining interim-use or entry permits from
the state due to existing limited entry programs.50 This
conclusion is supported by the Attorney Generals 1984 letter to
the Governor, which states: Aside from the two fishermen who
hold federal permits, but not state permits, for the salmon power
troll fishery, the only possible application of these landing
permits would be in the crab fishery if that is eventually
limited by the state.51 We conclude that the creation of landing
permits did not alter the scope of interim-use permits, and that
the existence of landing permits did not preclude the State from
requiring the respondents to possess interim-use permits.
Finally, we note that the landing permit statute gives
the CFEC commissioner discretion to authorize the issuance of
landing permits for a given fishery.52 If the legislature had
intended to require landing permits for all landings, the
legislature would not have made the issuance of the permits
discretionary. In contrast, the statute governing interim-use
permits makes their issuance mandatory.53 We also note that AS
16.05.675 explicitly requires that those who have not been issued
landing permits must either hold limited entry permits or interim-
use permits in order to deliver or land fish in the state. This
also supports our conclusion that the State was authorized to
require interim-use permits for fishers fishing in the EEZ.54
D. The CFEC Did Not Exceed Its Authority when It Charged
the Respondents with Violating AS 16.05.675.
The respondents claim that the CFEC exceeded its
authority when it charged them with violating AS 16.05.675
because the statute requires fishers to possess landing permits,
not interim-use permits or entry permits. We disagree. Alaska
Statute 16.05.675 requires either an entry permit, interim-use
permit, or a landing permit.55 Although landing permits are the
focus of the statute, the State did not exceed its authority when
it charged the respondents with a violation of the statute
because they did not possess any type of CFEC permit. As
discussed above, the State was not required to issue landing
permits to the respondents because the legislature made the
issuance of landing permits discretionary, and the respondents
did not fall into the category of fishers for whom landing
permits were intended. Yet they were still required to possess a
permit under AS 16.05.675.
E. Federal Law Does Not Preempt State Permit Requirements.
Dupier, Miller, and Twohy next argue that the CFEC is
preempted by federal law from requiring permits of fishers
participating in the federal IFQ program. Under the Supremacy
Clause of the federal constitution,56 state laws that interfere
with federal laws are invalid.57 Federal laws can preempt state
laws in the following three ways: (1) if Congress expressly
declares that state law is preempted; (2) if Congress
demonstrates an intent to occupy a field exclusively; and (3) if
there is an actual conflict between federal and state law.58
Preemption may be either express or implied.59 When considering
preemption, courts start with the assumption that the historic
police powers of the states were not to be superseded by the
Federal Act unless that was the clear and manifest purpose of
Congress.60
The respondents acknowledge that there is no express
declaration of preemption in any of the federal laws governing
fisheries off Alaskas coast. They argue instead that Congress
intended to occupy the field of halibut fishery management and
that the CFECs interpretation of Alaskas statutes creates an
actual conflict between federal and state law.
1. Congress did not intend to occupy the field of
halibut fishery management with respect to permits
required for landing fish in Alaska when it passed
the Halibut Act.
Dupier, Miller, and Twohy first claim that the Halibut
Act preempts state regulation of halibut fisheries because it
demonstrates an intent on the part of Congress to occupy the
field in this area. The respondents rely on an informal opinion
letter written by the Attorney General to a member of the Alaska
Legislature in 1995.61 In this opinion, the Attorney General
concluded that the Halibut Act preempted state management of
halibut within both federal and state waters.62
The Attorney Generals opinion rests on the fact that
the Halibut Treaty, which the Halibut Act implements, applies to
both federal and state waters. Therefore, the Attorney General
concluded, Congress intended to occupy the field when it adopted
the Halibut Treaty. The Attorney General also observed that the
Halibut Act does not contain any provision providing for
regulation of halibut by the states.
The State does not contest the Attorney Generals
conclusion that it is preempted from enacting halibut management
measures that conflict with measures in the Halibut Act.
Instead, the State argues that federal regulations make clear
that state permitting measures are not preempted for the purpose
of regulating and tracking fish landings. The Halibut Act
permits the Secretary of Commerce and the United States Coast
Guard to enter into agreements with state agencies to enforce the
Halibut Act, giving the states some role in the management of
halibut.63 To that end, the International Pacific Halibut
Commission has promulgated regulations requiring landings of
halibut to be recorded on state fish tickets64 and stating that
halibut licenses are in addition to any licenses required under
the laws of the states.65 Similarly, regulations promulgated
under the IFQ program state that the initial allocation of quota
shares for halibut and sablefish in the EEZ is predicated upon
compliance with state and Federal regulations in effect at the
time of the landing.66 Compliance with state regulations is
demonstrated through state fish tickets.67
Although we have not specifically examined preemption
under the Halibut Act in previous cases, we have examined whether
state regulation of fisheries is generally preempted under the
Magnuson-Stevens Act. In F/V Baranof, we concluded that Congress
did not intend to fully occupy the field of fisheries management
when it passed the Magnuson-Stevens Act.68 We noted that the
Magnuson-Stevens Act permits states to regulate fishing vessels
outside state boundaries, so long as the vessels are registered
under state laws.69 Therefore, we concluded that the Magnuson-
Stevens Act does not preempt state regulation for every aspect of
fisheries management. F/V Baranof concerned the states
regulation of king crab, a species for which no separate federal
regulations existed. Although management of the halibut fishery
is governed primarily by the Halibut Act, F/V Baranof is
instructive in this case because it illustrates that we will not
infer an intent to occupy the field where Congress has left some
room for state involvement.70 In F/V Baranof, we also considered
that the states fisheries management programs shared the same
goal as the Magnuson-Stevens Act conservation of fisheries.71
Similarly, the Halibut Act leaves some room for state involvement
in enforcement of the act, and the states permitting scheme
shares the same goal of the Halibut Act conservation of
fisheries. For these reasons, we conclude that the Halibut Act
does not reflect an intent on the part of Congress to occupy the
field of halibut fishery management with respect to permits
required for landing fish in Alaska.
2. The CFECs permit requirements do not create an
actual conflict with federal law.
Dupier, Miller, and Twohy argue that the CFECs permit
requirement creates a direct conflict with federal law. State
law is preempted if the state law conflicts with the federal law
to the extent that (a) it is impossible to comply simultaneously
with both or (b) the state regulation obstructs the execution of
the purpose of the federal regulation.72
The respondents argue that a conflict exists because a
corporation, firm, or association may participate in the federal
IFQ program, whereas the interim-use permits issued by the CFEC
are only available to individuals. Therefore, they argue that
some fishers who are legally fishing in federal waters might not
qualify for an interim-use permit. This is not the case in
practice. According to the State, a corporation participating in
the federal IFQ program must assign its annual IFQ to a natural
person who harvests the fish. The assignee is the person who
must obtain a CFEC permit.73 Therefore, it is possible to comply
simultaneously with both the federal permitting scheme and the
state permitting scheme. Moreover, the purpose of both
permitting schemes is to conserve fishery resources.74 We
conclude that the States requirement that federally permitted
fishers possess interim-use permits to land their halibut catch
in Alaska is not preempted by federal law.
3. The Magnuson-Stevens Act does not preempt the CFEC
from requiring permits of federal sablefish or
halibut fishers.
The respondents also argue that the CFECs permit
requirements are preempted by the Magnuson-Stevens Act.75 The
Magnuson-Stevens Act provides in relevant part: the United States
claims, and will exercise in the manner provided for in this
chapter, sovereign rights and exclusive fishery management
authority over all fish, and all Continental Shelf fishery
resources, within the exclusive economic zone.76 Some courts
have indicated that this provision preempts state attempts to
regulate landings of fish caught in the EEZ.77 But these cases
involve outright bans on landings or landing limits that prevent
fishers from landing fish in amounts permitted under federal
law.78 Other courts have upheld state regulations that apply to
EEZ fishers.79
The CFECs interim-use permit program does not thwart
the goals of the Magnuson-Stevens Act; nor does it prevent
federally permitted fishers from landing their fish. Essentially
everyone who applies for an interim-use permit receives one, the
permit imposes no restrictions on catch or gear, and the fee is
relatively low. Moreover, as the court of appeals recognized in
State v. Kalve,80 regulations promulgated under the Magnuson-
Stevens Act contemplate that states will regulate halibut and
sablefish landings in some fashion. The regulations base a
fishers federal quota for halibut and sablefish on the fishers
prior legal landings of halibut and sablefish in IFQ fisheries.81
The regulations define legal landing as follows: As used in this
section, a legal landing of halibut or sablefish means halibut or
sablefish harvested with fixed gear and landed in compliance with
state and Federal regulations in effect at the time of the
landing.82 These regulations indicate that the state may
regulate some aspects of halibut and sablefish landings in
Alaska.83
We also note that the Magnuson-Stevens Act carves out
an exception to 1811 for boats registered with the state. The
exception is codified at 16 U.S.C. 1856(a)(3), which states:
[A] State may regulate a fishing vessel
outside the boundaries of the State in the
following circumstances: (A) The fishing
vessel is registered under the law of that
State, and . . . (ii) the States laws and
regulations are consistent with the fishery
management plan and applicable Federal
fishing regulations for the fishery in which
the vessel is operating.[84]
At this stage in the litigation it is not necessary to determine
whether this exception might apply in this case. But in our
opinion the exception supports our conclusion that the Magnuson-
Stevens Act does not preempt all aspects of state regulation of
fish caught in EEZ waters.85 Finally, we note that our
conclusion on the preemption question is limited to the narrow
question whether the CFEC is preempted from requiring interim-use
permits for fishers landing their catches in Alaska; we need not
decide the extent to which the State is preempted from regulating
other aspects of the halibut and sablefish fisheries.
F. State Permit Requirements Did Not Violate the Federal
Constitution.
The respondents argue that AS 16.05.675 and 20 AAC
05.110 are impermissibly vague so as to deprive the respondents
of due process in violation of the federal constitution. Miller
additionally asserts that the States fee structure for interim-
use permits violates the Commerce and Privileges and Immunities
Clauses of the federal constitution because permits cost less for
Alaska residents than for nonresidents.
1. Neither AS 16.05.675 nor 20 AAC 05.110 was
impermissibly vague.
The respondents argue that AS 16.05.675 and the pre-
amendment version of 20 AAC 05.110 were unconstitutionally vague
because the provisions did not notify the respondents of the
conduct that is prohibited. Under the federal constitution, the
void-for-vagueness doctrine requires a penal statute or
regulation to be sufficiently clear so that ordinary people can
understand what conduct is prohibited.86 Neither of the
provisions at issue in this case was unclear. Alaska Statute
16.05.675 was unambiguous in its requirement that fishers must
possess either an entry permit, interim-use permit, or a landing
permit in order to land their catches.87 None of the respondents
possessed any of these permits.88 Similarly, 20 AAC 05.110
required fishers to obtain an entry permit or interim-use permit
in order to possess commercially taken fish in state waters.89
The respondents did not possess any type of permit, despite the
clear language of these provisions.90 We find that ordinary
people could discern what was required of them under these
provisions.
2. Millers constitutional arguments are without
merit.
Miller argues that the higher permit fees assessed
against nonresidents violate the Privileges and Immunities and
Commerce Clauses of the federal constitution. We examined whether
different rates can be charged for nonresident and resident
fishers in the ongoing Carlson litigation.91 In Carlson II, we
held that fee differentials charged by the CFEC to nonresident
fishers for commercial fishing permits did not implicate
interstate commerce.92 We similarly hold that the Commerce
Clause is not implicated here. We also held in Carlson II that
different rates may be charged for resident and nonresident
commercial fishers without violating the Privileges and
Immunities Clause, and we derived a formula for calculating the
acceptable difference.93
Relying in part on his preemption argument, Miller
attempts to distinguish the Carlson cases on the ground that the
State of Alaska does not actively mange the halibut fishery.
Therefore, Miller argues, the CFEC cannot justify the higher
permit fees for nonresident fishers on the basis that Alaska
residents pay proportionately more in foregone benefits than
nonresidents for fisheries management of the halibut fishery, as
delineated in our Privileges and Immunities analysis in Carlson
I.94 But as we discuss in Part III.E of this decision, the State
is not entirely preempted from regulating halibut fishers.
Federal fishers landing their fish in Alaska benefit to some
degree from the states fisheries management programs. And the
formula that we set forth in Carlson II and affirmed in Carlson
III is based on the per capita contribution of Alaskas residents
to the states entire fisheries budget, not just the portion of
the budget attributable to a particular type of fish.95
Moreover, we recognized in Carlson I that the proper
way to protest a wrongful tax is to protest the payment of the
tax at the time of payment in order to subsequently maintain
either a common law or statutory cause of action.96 In 2001 the
permit fees were set at the same 3:1 fee differential that we
considered in the Carlson cases.97 We did not view the fee
differential as being prohibitively burdensome so as to merit
waiver of the payment under protest requirement, and we similarly
do not view it as overly burdensome here. If Miller wishes to
challenge the fee structure, the proper method is to obtain the
license and protest the fees at the time of payment.
IV. CONCLUSION
We REVERSE the decision of the court of appeals. This
case is REMANDED for further proceedings.
_______________________________
1 As it existed at the time of the citations, 20 Alaska
Administrative Code (AAC) 05.110 (2001) stated:
Permit Required to Possess Fish or Shellfish.
(a) It is unlawful for any person to
possess, within water subject to the
jurisdiction of the state, any fish or
shellfish, taken for a commercial purpose,
aboard a fishing vessel commonly used for
taking that species of fish or shellfish
unless the person has in his possession a
valid interim-use or entry permit card
allowing him to take the fish or shellfish in
his possession with the gear with which the
vessel is equipped unless waived by the
commission for good cause.
(b) As used in this section, a
commercial purpose includes any sale,
purchase, trade, gift, or any portion of a
commercial transaction.
(c) For purposes of this section, a
person reporting a landing of fish under a
federal individual fishing quota (IFQ)
possesses fish for a commercial purpose.
2 See AS 16.43.225; AS 16.43.240(c).
3 See AS 16.05.675.
4 AS 16.05.675.
5 AS 16.43.210.
6 State v. Dupier, 74 P.3d 922, 927-28 (Alaska App.
2003).
7 Id. at 923.
8 As it existed in 2001, AS 16.05.675 stated:
Landing permits.
(a) A person who does not hold a
limited entry permit or interim-use permit
issued under AS 16.43 may not deliver or land
fish in the state unless the person
(1) holds a valid federal permit
to operate commercial fishing gear in
the fishery conservation zone; and
(2) has been issued a landing
permit by the Commercial Fisheries Entry
Commission.
(b) The commissioner may by regulation
establish eligibility requirements for the
issuance of a landing permit.
(c) The commissioner may authorize the
Commercial Fisheries Entry Commission to
issue landing permits for a fishery if the
commissioner has made a written finding that
the issuance of landing permits for that
fishery is consistent with state resource
conservation and management goals.
9 AS 16.43.210(a), as amended by ch. 20, 1, SLA 2004.
The amended AS 16.43.210(a) states:
For each fishery that is not subject to a
maximum number of entry permits under AS
16.43.240 and not subject to a moratorium
under AS 16.43.225, the commission shall
issue interim-use permits under regulations
adopted by the commission to all applicants
who can establish their present ability to
participate actively in the fishery for which
they are making application.
10 20 AAC 05.110(a) (2001).
11 20 AAC 05.110(a) (2004). The amended version of 20 AAC
05.110(a) states in relevant part:
It is unlawful for any person to possess,
within water subject to the jurisdictions of
the state, any fish or shellfish, taken for a
commercial purpose, aboard a fishing vessel
commonly used for taking that species of fish
or shellfish unless the person has in that
persons possession a valid interim-use or
entry permit card to take the fish or
shellfish in that persons possession with the
gear with which the vessel is equipped or a
landing permit for the species of fish
possessed unless waived by the commission for
good cause.
12 McElroy v. Kennedy, 74 P.3d 903, 906 (Alaska 2003).
13 Langdon v. Champion, 745 P.2d 1371, 1372 n.2 (Alaska
1987) (citation omitted).
14 W. Star Trucks, Inc. v. Big Iron Equip. Serv., Inc.,
101 P.3d 1047, 1048 (Alaska 2004).
15 Alaska Ctr. for the Envt v. Rue, 95 P.3d 924, 926
(Alaska 2004).
16 See, e.g., Deaver v. Auction Block Co., 107 P.3d 884,
888 & n.4 (Alaska 2005) (observing that the commercial fishing
industry in Alaska is highly regulated).
17 Magnuson-Stevens Fishery Conservation and Management
Act, 16 U.S.C. 1801-1883 (2000). The Act is alternatively
referred to as the Fishery Conservation and Management Act of
1976.
18 16 U.S.C. 1811 (2000); Proclamation No. 5030, 48 Fed.
Reg. 10605 (March 14, 1983) (creating the EEZ).
19 16 U.S.C. 1852(a) (2000).
20 16 U.S.C. 1852(h), 1853, 1854. The regulations
governing the Gulf of Alaska are codified at: Fisheries of the
Exclusive Economic Zone Off Alaska, 50 C.F.R. 679 (2005). See
United States v. Ertsgaard, 222 F.3d 615, 616 n.1 (9th Cir.
2000).
21 Convention for the Preservation of the Halibut Fishery
of the Northern Pacific Ocean and Bering Sea, March 2, 1953, U.S.-
Can., 5 U.S.T. 5 and Protocol Amending the Convention Between the
United States and Canada for the Preservation of the Halibut
Fishery of the Northern Pacific Ocean and Bering Sea, March 29,
1979, U.S.-Can., 32 U.S.T. 2483.
22 Northern Pacific Halibut Act of 1982, 16 U.S.C. 773
(2000).
23 16 U.S.C. 773c(c); Erstgaard, 222 F.3d at 617 n.4.
24 50 C.F.R. 679. The regulations contained in 50 C.F.R.
679 are promulgated under the authority of the Magnuson-Stevens
Act, the Halibut Act, and the Pacific Salmon Treaty Act. See
Erstgaard, 222 F.3d at 618.
25 AS 16.43.010-990.
26 AS 16.43.010(b). For a history of the Limited Entry
Act, see Johns v. Commercial Fisheries Entry Commn, 758 P.2d
1256, 1258 (Alaska 1988).
27 AS 16.43.100(a)(1).
28 Former AS 16.43.210.
29 The State argues that the 2004 amendment to AS
16.43.210(a) serves as a legislative clarification of pre-
existing law. But in Hillman v. Nationwide Mut. Fire Ins. Co.,
we reasoned: While the legislature is fully empowered to declare
present law by legislation, it is not institutionally competent
to issue opinions as to what a statute passed by an earlier
legislature meant. 758 P.2d 1248, 1252-53 (Alaska 1988). We
have followed the Hillman rule in a number of subsequent cases.
See State, Dept of Revenue v. OSG Bulk Ships, Inc., 961 P.2d 399,
406 n.13 (Alaska 1998); Univ. of Alaska v. Tumeo, 933 P.2d 1147,
1156 (Alaska 1997); Hickel v. Cowper, 874 P.2d 922, 925 n.7
(Alaska 1994); Flisock v. State, Div. of Ret. & Benefits, 818
P.2d 640, 645 (Alaska 1991); Wrangell Forest Prods. v. Alderson,
786 P.2d 916, 918 n.1 (Alaska 1990). In this case, we decline to
treat the 2004 amendment as a legislative clarification of the
pre-existing law.
30 Former AS 16.43.140(a) provided in 2001: After January
1, 1974, a person may not operate gear in the commercial taking
of fishery resources without a valid entry permit or a valid
interim-use permit issued by the [CFEC].
31 See 20 AAC 05.110 (2001). The other enabling statutes
cited in the regulation are AS 16.43.100(b) (granting the CFEC
power to do all things necessary to the exercise of its powers
under this chapter) and AS 16.43.110 (granting the CFEC authority
to adopt regulations).
32 AS 16.43.140(a).
33 Carlson v. State (Carlson I), 798 P.2d 1269, 1271
(Alaska 1990).
34 Id.; see also ch. 105, 19, SLA 1977.
35 Transmittal letter from Governor Hammond to the
legislature, 1977 Senate Journal 200 (Feb. 4, 1977); see also
Letter from Roy A. Rickey, Chairman of the CFEC, to the Honorable
Kay Poland, Chairman of the Senate Resources Committee (Feb. 23,
1977) (in legislative file for S.B. 128); Commercial Fisheries
Entry Commission, A Report on Senate Bill 128 (Feb. 22, 1977) (in
legislative file for S.B. 128).
36 Letter from Roy A. Rickey, Chairman of the CFEC, to the
Honorable Kay Poland, Chairman of the Senate Resources Committee
(Feb. 23, 1977) (in legislative file for S.B. 128).
37 Carlson I, 798 P.2d at 1271.
38 AS 16.43.140(a). Gear is defined as the specific
apparatus used in the commercial harvest of a species, including
but not limited to purse seines, drift gill nets, set gill nets,
and troll gear. AS 16.43.990(5).
39 AS 16.43.210(a).
40 AS 16.10.267(a)(1) states: When a fisherman sells
fish, the fisherman shall possess (1) a landing permit, entry
permit, or interim-use permit issued or transferred to the
fisherman under AS 16.43, or other document authorized by
regulation to be used in place of an entry permit or interim-use
permit.
41 20 AAC 05.075 (former regulation).
42 Id.
43 CFEC Finding of Emergency, May 13, 1974, in regulation
file for former 20 AAC 05.075.
44 AS 16.10.267(a) also supports the authority of the CFEC
to promulgate 20 AAC 05.110, the regulation under which the
respondents are charged, because section .110 is similar to and
an historical successor of former regulation 20 AAC 05.075. We
note that our discussion of AS 16.10.267 is intended only to
illustrate that interim-use permits may serve purposes other than
authorizing gear operation. The State apparently sought to
charge all three respondents with violating AS 16.10.267, but the
charging documents were only served on Miller and were never
filed with the court.
45 The respondents additionally note that the State had
never issued landing permits in 2001.
46 Ch. 145, 1, SLA 1984.
47 Letter, re: CSHB 376 (Res) am. from Attorney General
Gorsuch to Governor Bill Sheffield (June 21, 1984).
48 Id.
49 The State acknowledges that four sablefish fisheries
have been limited to entry, but asserts that Twohy could have
obtained a statewide interim-use permit for sablefish under 20
AAC 05.230(a)(8) that would not have allowed him to harvest
sablefish in the limited entry areas.
50 We do not need to decide whether new regulations issued
by the CFEC have broadened the scope of landing permits.
51 Letter, re: CSHB 376 (Res) am from Attorney General
Gorsuch to Governor Bill Sheffield (June 21, 1984).
52 AS 16.05.675(c).
53 AS 16.43.210(a) (the [CFEC] shall issue interim-use
permits . . . to all applicants).
54 AS 16.05.675 also supports the authority of the CFEC to
promulgate 20 AAC 05.110. The statute prohibits delivering or
landing fish in the state without a limited entry permit or an
interim-use permit and the regulation prohibits possession of
fish without such a permit. The regulation is within the scope
of the statute because one may not deliver or land fish without
also possessing them.
55 AS 16.05.675.
56 U.S. Const. art. VI, 2.
57 Wis. Pub. Intervenor v. Mortier, 501 U.S. 597, 604
(1991).
58 Totemoff v. State, 905 P.2d 954, 958 (Alaska 1995).
59 State v. F/V Baranof, 677 P.2d 1245, 1249 (Alaska 1984)
(quoting Shaw v. Delta Airlines, Inc., 463 U.S. 85, 95 (1983)).
60 Mortier, 501 U.S. at 605 (quoting Rice v. Santa Fe
Elevator Corp., 331 U.S. 218, 230 (1947)); see also Native
Village of Eklutna v. Alaska R.R. Corp., 87 P.3d 41, 56 (Alaska
2004).
61 1996 Informal Op. Atty Gen. 15, 1995 WL 1054099 (Alaska
A.G., July 31, 1995).
62 Id. The weight accorded to opinions of the Attorney
General is largely within our discretion. In general, they are
not controlling but are entitled to some deference. State v.
Kenaitze Indian Tribe, 83 P.3d 1060, 1066 n.22 (Alaska 2004).
63 16 U.S.C. 773(I) (2000).
64 Pacific Halibut Fisheries; Catch Sharing Plans, 66 Fed.
Reg. 15806 (March 21, 2001 (to be codified at 50 C.F.R. pt. 300).
65 Pacific Halibut Fisheries; Catch Sharing Plans, 66 Fed.
Reg. at 15804.
66 Individual Fishing Quota Management Measures, Sablefish
and Halibut Quota Share, 50 C.F.R. 679.40(a)(3)(v)(A) (2005).
67 50 C.F.R. 679.40(a)(3)(v)(B).
68 677 P.2d at 1250.
69 Id.; 16 U.S.C. 1856(a) (2000).
70 See Native Village of Eklutna, 87 P.3d at 56-57
(examining purpose of federal act to determine whether Congress
intended to preempt all local and state regulation).
71 F/V Baranof, 677 P.2d at 1251.
72 Interior Regl Hous. Auth. v. James, 989 P.2d 145, 149
(Alaska 1999) (quoting In re J.R.B., 715 P.2d 1170, 1172 (Alaska
1986)).
73 The respondents may seek to disprove the States factual
assertion on this point at trial.
74 Miller also argues that the CFEC permit program creates
a direct conflict with federal law because it discriminates
between residents and nonresidents in violation of the Halibut
Act. The Halibut Act authorizes the Regional Fishery Management
Council to develop fishing regulations so long as the regulations
do not discriminate between residents of different states. 16
U.S.C. 773c(c) (2000). Miller contends that the CFEC does
discriminate against residents and nonresidents by charging
different fees for interim-use permits, and that this creates a
conflict with federal law. A decision that the CFECs fee
schedule is preempted by federal law would not resolve whether
the CFEC is preempted from requiring interim-use permits for IFQ
holders it would merely invalidate the fee schedule. See
McKesson Corp. v. Div. of Alcoholic Beverages & Tobacco, 496 U.S.
18, 40 (1990) (striking down portion of tax liquor charged to
nonresidents and noting that the State may retain the tax
appropriately levied upon petitioner . . . because this retention
would deprive petitioner of its property pursuant to a tax scheme
that is valid). But see Toomer v. Witsell, 334 U.S. 385, 403
(1948) (invalidating entire licensing statute where it imposed
unfair fee on nonresidents); United States v. Hagen, 782 F. Supp.
1351, 1363 (D. Neb. 1991). Moreover, it is not clear that there
is a conflict with 16 U.S.C. 773c(c), which merely requires a
particular federal agency not to discriminate between residents
of different states. 16 U.S.C. 773c(c) (2000).
75 All three respondents argue that the Halibut Act is the
primary source of federal preemption for the halibut fishery.
Their preemption arguments regarding Twohys sablefish charge
focus on the Magnuson-Stevens Act. However, Miller argues that
the Magnuson-Stevens Act also preempts the CFEC from regulating
the halibut fishery.
76 18 U.S.C. 1811(a) (2000).
77 See City of Charleston, S.C. v. A Fishermans Best,
Inc., 310 F.3d 155, 175 (4th Cir. 2002) (concluding that
municipal regulation prohibiting longline vessels from landing at
citys maritime center was preempted by 1811); S.E. Fisheries
Assn, Inc. v. Chiles, 979 F.2d 1504, 1510 (11th Cir. 1992)
(indicating that state catch limits on Spanish mackerel landed in
Florida were preempted by 1811 and remanding for further
proceedings); State v. Sterling, 448 A.2d 785, 787 (R.I. 1982)
(stating in dicta that Magnuson-Stevens Act preempted state catch
limits for yellowtail flounder).
78 Id.
79 See La. Seafood Mgmt. Council, Inc. v. Foster, 917 F.
Supp. 439, 443 (E.D. La. 1996) (upholding state regulation that
applied only in state waters); People v. Weeren, 607 P.2d 1279,
1287 (Cal. 1980) (concluding that California could regulate a
California-registered vessel outside its waters so long as there
was no conflict with federal law); Raffield v. State, 565 So. 2d
704, 705 (Fla. 1990) (concluding that state regulation
prohibiting landing of red fish with a purse seine did not
violate Magnuson-Stevens Act).
80 9 P.3d 291, 294 (Alaska App. 2000).
81 50 C.F.R. 679.40(a)(4).
82 50 C.F.R. 679.40(a)(3)(v)(A) (emphasis added).
83 See Kalve, 9 P.3d at 294.
84 16 U.S.C. 1856(a)(3) (2000).
85 See Foster, 917 F. Supp. at 443; Weeren, 607 P.2d at
1286.
86 Treacy v. Municipality of Anchorage, 91 P.3d 252, 260-
61 (Alaska 2004).
87 Former AS 16.05.675; see supra text of statute
accompanying note 8.
88 Dupier states in two affidavits that he attempted to
procure the appropriate state permits but was given incorrect
information by state officials. Under our case law, private
parties may invoke estoppel against the state under exceptional
circumstances as a means to avoid injustice. See Alaska
Trademark Shellfish, LLC v. State, 91 P.3d 953, 960 (Alaska
2004). Dupier does not ask us to invoke this equitable remedy
here, so we do not consider whether estoppel might be
appropriate. Dupier is free to pursue this argument on remand.
89 20 AAC 05.110 (2001).
90 As we discuss in Part III.C.1 of this decision, the
meaning of the pre-amendment AS 16.43.210 was ambiguous.
However, that statute concerns the scope of the States authority
to require interim-use permits of federally-permitted fishers,
not the requirement that fishers obtain permits. The penal
provisions under which the respondents were charged, AS 16.05.675
and 20 AAC 05.110, do not contain ambiguous language.
91 State, Commercial Fisheries Entry Commn v. Carlson
(Carlson III), 65 P.3d 851 (Alaska 2003); Carlson v. State,
Commercial Fisheries Entry Commn (Carlson II), 919 P.2d 1337
(Alaska 1996); Carlson I, 798 P.2d at 1269.
92 Carlson II, 919 P.2d at 1340.
93 Id. at 1342.
94 Carlson I, 798 P.2d at 1278.
95 Carlson III, 65 P.3d at 875; Carlson II, 919 P.2d at
1343.
96 Carlson I, 798 P.2d at 1280 (quoting Principal Mut.
Life Ins. Co. v. State, Div. of Ins., 780 P.2d 1023, 1028-30
(Alaska 1989)); see also Carlson III, 65 P.3d at 869.
97 See former 20 AAC 05.240(a)(4) (repealed 12/21/2002).
The price range for resident commercial fishing permits in 2001
was $15 to $250 and the range for nonresident permits was $45 to
$750.
