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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Wilson V. State, Dept. of Corrections (01/20/2006) sp-5974
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
| MERLE G. WILSON, | ) |
| ) Supreme Court No. S- 11120 | |
| Appellant, | ) |
| ) Superior Court No. 1JU-02-00553 CI | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| DEPARTMENT OF CORRECTIONS, | ) [No. 5974 - January 20, 2006] |
| ) | |
| Appellee. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, First Judicial District, Juneau,
Larry R. Weeks, Judge.
Appearances: Merle G. Wilson, pro se,
Palmer. Marilyn J. Kamm, Assistant Attorney
General, and Gregg D. Renkes, Attorney
General, Juneau, for Appellee.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
EASTAUGH, Justice.
MATTHEWS, Justice, with whom BRYNER, Chief
Justice, joins, dissenting.
I. INTRODUCTION
Alaska Statute 33.30.081(b) and 22 Alaska
Administrative Code (AAC) 05.585(a) require the State of Alaska
to transport a released prisoner to the place of arrest. Merle
Wilson argues that, because he was arrested at his home, the
statute and regulation required the state to return him to his
home on Columbia Cove, 3.5 miles by footpath or skiff from
Tenakee Springs, when it released him from prison in May 2002.
We conclude that the states policy of transporting released
prisoners to the community nearest the exact location of their
arrest is, under the particular circumstances of this case, a
reasonable interpretation of the statute and regulation. Because
it was not unreasonable for the state to conclude that Columbia
Cove was within the community of Tenakee Springs, the statute and
regulation were satisfied when the state offered to transport
Wilson to the community of Tenakee Springs. We consequently
affirm the superior court order denying Wilsons administrative
appeal.
II. FACTS AND PROCEEDINGS
Merle Wilson was arrested at his home on Columbia Cove,
about 3.5 miles from the community of Tenakee Springs, on
Chichagof Island. Wilson was eventually convicted of assault in
the second degree and imprisoned at the Lemon Creek Correctional
Facility in Juneau. As his projected May 2002 release date
neared, he asked the Department of Corrections (DOC) to pay for
transportation to his home on Columbia Cove. There are no roads
to Columbia Cove; it is accessible only by boat, footpath from
Tenakee Springs, or floatplane. A chartered flight to Columbia
Cove from Juneau would have cost about $350. DOC denied his
request, agreeing to take him to Tenakee Springs on a regularly
scheduled flight, at a cost that DOC says is about $79. There is
a 3.5-mile footpath from Tenakee Springs to Wilsons home on
Columbia Cove.1 The record does not reflect the condition of
this footpath, but Wilson did not contend in the agency or
superior court proceedings that it was impassable at the time of
his projected May release, that he was physically incapable of
traversing the footpath, or that other impediments or hazards
might prevent him from walking to his home.
Wilson filed an administrative grievance with DOC
alleging that 22 AAC 05.585(a) requires DOC to provide return
transportation to a prisoners place of arrest. Wilson argued
that his place of arrest was his home in Columbia Cove. DOC
denied his grievance, on the ground that 22 AAC 05.585 is
intended to prevent inmates that have been transferred to other
state institutions from being stranded in those cities upon their
release. DOC informed Wilson that its policy was to provide
[inmates] with transportation to the city of their arrest.
(Emphasis added.) Wilson administratively appealed this decision
through the grievance process. DOC denied his appeal, claiming
that it has consistently interpreted place of arrest as meaning
the community closest to the place of arrest.
Wilson was released from prison on May 17, 2002 without
DOC-provided transportation. He seems to have arranged at his
expense to have himself flown by floatplane to Columbia Cove.
Wilson filed a post-release administrative appeal in the superior
court seeking a declaratory judgment concerning the meaning of AS
33.30.081 and 22 AAC 05.585 and asking that DOC be required to
pay damages equal to the cost of a chartered flight to Columbia
Cove and appellate expenses. DOC filed no opposition. The
superior court held that DOCs interpretation of its regulation
was not plainly erroneous or inconsistent with the language of
the regulation. It denied Wilsons request for damages, reasoning
that the state could reasonably conclude that the regulation is
intended to return released prisoners to the community in which
they were arrested so as to protect them from being stranded in a
city that is not their own.
Wilson appeals.
III. DISCUSSION
A. Standard of Review
When the superior court acts as an intermediate court
of appeal in an administrative matter, we independently and
directly review the agency decision.2 Alaska Statute
33.30.081(d) states: The commissioner of corrections shall adopt
regulations governing the furnishing of transportation, discharge
payments, and clothing to prisoners upon release from a state
correctional facility. The DOC commissioner adopted 22 AAC
05.585 under this authority. When an administrative regulation
is adopted under statutory authority, we review the regulation to
determine whether it is consistent with and reasonably necessary
to carry out the purposes of the statutory provisions conferring
rule-making authority on the agency and whether it is reasonable
and not arbitrary considering the legislative purpose.3
Moreover, we have recognized that an agencys interpretation of a
law within its area of jurisdiction can help resolve lingering
ambiguity and that we should exercise restraint and look for
weighty reasons before substituting our judgment for the agencys
in interpreting a statute or regulation.4
B. Neither AS 33.30.081 nor 22 AAC 05.585 Requires DOC To
Return Released Inmates to the Precise Location of Their
Arrest.
Wilson argues that AS 33.30.081 gives released
prisoners a right to return transportation to the exact site of
the arrest in his case, his home on Columbia Cove. He alleges
that 22 AAC 05.585 simply restates that right and also outlines
the process if a prisoner chooses to be transported to an
alternative destination. DOC argues in response that place of
arrest means the community nearest the location of the arrest.
Alaska Statute 33.30.081 states in pertinent part:
(b) The commissioner of corrections shall
make available return transportation to the
place of arrest for a prisoner who is
released from custody in a state correctional
facility.
. . . .
(d) The commissioner of corrections shall
adopt regulations governing the furnishing of
transportation, discharge payments, and
clothing to prisoners upon release from a
state correctional facility at any stage of a
criminal proceeding.
22 AAC 05.585(a) states in pertinent part:
The department will bear the cost of
transporting a prisoner to the place of
arrest upon release, if the prisoner was
admitted into a state facility. If a
prisoner declines return transportation, or
requests a destination different from the
place of arrest, the prisoner must sign a
written waiver. Transportation to an
alternative site may be provided up to the
actual cost of return transportation to the
prisoners place of arrest. . . .
We interpret a statute according to reason, practicality, and
common sense, considering the meaning of its language, its
legislative history, and its purpose.5 The goal of statutory
construction is to give effect to the legislatures intent, with
due regard for the meaning the statutory language conveys to
others.6 We apply a similar analysis in interpreting a
regulation.
1. The meaning of the phrase place of arrest is
ambiguous in the statute and the regulation.
We give popular or common words their ordinary meaning,
if the words are not otherwise defined in the statute.7 We may
also consider how we have interpreted the words in other cases or
statutes or how administrative agencies have used the words.8
[P]lace of arrest is not defined in AS 33.30.081 or 22
AAC 05.585. Dictionary definitions for place support the
conflicting interpretations proposed by Wilson and DOC.9
Definitions supporting DOCs interpretation of place as meaning
community include: a portion of space; an area with definite or
indefinite boundaries; a definite location. . . . A particular
town or city;10 an indefinite region or expanse; and a particular
region or center of population.11 Definitions supporting Wilsons
view that place is a precise location include: a definite
location . . . A house, apartment, or other abode;12 and an
individual dwelling or estate: house, homestead.13
Wilson argues that place was meant to be a precise
location rather than a community because 22 AAC 05.585(a) offers
released inmates transportation to an alternative site if they
choose not to be returned to their place of arrest. (Emphasis
added.) But DOC correctly argues that site has many possible
definitions and could denote either an entire community or a
specific building. Definitions of site include: the spatial
location of an actual or planned structure or set of structures
(as a building, town, or monuments);14 local position of a
building, town, monument, or similar work either constructed or
to be constructed, esp. in connection with its surroundings;
scene of an action . . . or specified activity;15 and a place or
location; esp., a piece of property set aside for a specific use.16
Wilson argues that we should look to the use of place
in AS 12.70.070, which authorizes a police officer holding a
valid warrant to arrest the accused at any time and any place
where the accused may be found within the state. But the meaning
of place is no more specific in that statute. Place could mean
either the precise location or, more broadly, the community
encompassing the exact place of the arrest.
DOC responds that AS 12.70.070 has no relevance here.
It points to Alaska Criminal Rule 4(c)(2),17 which describes the
territorial limits of an arrest warrant as any place within the
jurisdiction of the State of Alaska. DOC points out that the
arresting officer need only indicate the community where the
offender was arrested as the place of arrest.18 We do not find
this use of place of arrest to be helpful in interpreting AS
33.30.081.
Our prior opinions have used place of arrest almost
exclusively to refer to the exact location of arrest, but those
cases concerned search-and-seizure challenges for which the
precise location was relevant to determining whether the search
was incident to a lawful arrest.19 These cases do not help us
interpret place of arrest in AS 33.30.081.
2. There is no helpful legislative or administrative
history for the term place of arrest in AS
33.30.081 and 22 AAC 05.585.
In the context of prisoner transportation in Alaska,
the phrase place of arrest first appeared in the Alaska
Administrative Code before it appeared in the Alaska Statutes.
Until 1986, the pertinent statute was AS 33.30.160(a). It simply
provided that [t]he cost of transporting or transferring a
prisoner, either inside or outside the state, after temporary or
final commitment shall be paid from the appropriation to the
Department of Public Safety. Alaska Statute 33.30.160(b)
directed the Commissioner of Health and Human Services to adopt
regulations governing the furnishing of transportation, discharge
payments, and clothing to prisoners upon release at any stage of
criminal proceedings.20 Per this authority, the commissioner
adopted 7 AAC 60.585, which introduced the concept of returning
released prisoners to their place of arrest and which stated:
The division shall bear the cost of
transporting a person to the place of his
arrest, within the State of Alaska, upon
release, only after having been admitted into
a state institution or contract facility. If
a prisoner requests an alternate designation
than his place of arrest, he must sign a
waiver which so states. Transportation to
alternative sites selected by him must be
provided, or costs paid up to the amount
which it would be necessary to pay for his
return to the actual place of arrest.
(Emphasis added.) This regulation became effective September 10,
1977.21 No administrative history brought to our attention
reveals what the commissioner meant by the term place of arrest
in 7 AAC 60.585.
On January 25, 1985 House Bill 114 was introduced at
the request of the governor.22 The bill proposed a wholesale
revision of Chapter 30 of Title 33 of the Alaska Statutes.23 The
bill acknowledged that it would affect administrative regulations
and allowed all regulations adopted under the now-repealed
statutes to continue in effect until amended or repealed by the
commissioner of corrections.24 The bill was enacted and signed
into law in 1986.25 As adopted, the bill repealed AS 33.30.160
and enacted AS 33.30.081.26 There was no discussion of the
meaning of place of arrest during the legislative process. The
only indication of the legislatures intent consists of testimony
before the House Judiciary Committee by an assistant attorney
general that the sections intent was to get the prisoner back
home.27 This statement of purpose is not helpful here because
home might mean either the community in general or an exact
location. And home is potentially inconsistent with place of
arrest because the prisoner may not have been arrested at his
actual residence or even in his home community.
The language of 22 AAC 05.585 mirrors the language in
AS 33.30.081 and former 7 AAC 60.585 without further explanation.
We are unaware of any meaningful administrative history for 22
AAC 05.585.
3. DOCs interpretation of place of arrest is
reasonable and not arbitrary and achieves the
policy underlying AS 33.30.081.
DOC argues that its interpretation of AS 33.30.081 is
consistent with the legislative intent to avoid having inmates
released from prisons at great distances from their homes without
the funds for transportation from the prison to the community
nearest to the inmates place of arrest. Where, as here, there is
lingering ambiguity about the meaning of a statute or regulation,
an agencys interpretation of a law within its area of
jurisdiction is helpful.28 We believe that DOCs interpretation of
AS 33.30.081 reasonably achieves the statutes purpose. Because
there is evidence that Columbia Cove is within the Tenakee
Springs community, DOCs decision to transport Wilson to Tenakee
Springs instead of Columbia Cove was reasonable.29
DOCs policy of transporting released prisoners to the
community nearest their place of arrest has historical support.
States have paid for a released prisoners transportation at least
since the early twentieth century.30 Many early statutes provided
transportation for the prisoner only to the community where the
prisoner was convicted or to the prisoners home community.31
DOCs policy better achieves the stated legislative
purpose of getting the prisoner back home than the statutory
language itself. DOC allows a prisoner the option of choosing
transportation to a place other than the place of arrest so long
as transportation to the alternative location is not more
expensive than transportation to the place of arrest.32 This
option affords a prisoner who was not arrested in his home
community the opportunity to be returned home rather than to the
place of his arrest.
DOCs interpretation of AS 33.30.081(b) is consistent
with the underlying policy of AS 33.30.081. Other provisions in
AS 33.30.081 balance the right of prisoners to appear in court
proceedings against DOCs burden of paying the cost of
transportation. For example, AS 33.30.081(f) allows a court to
order a prisoner to appear only after the court determines that
the prisoners presence is essential to the just disposition of
the action. It also requires the court to provide the
Commissioner of Corrections an opportunity to comment and to
consider alternatives to a personal appearance, such as
deposition and telephonic testimony.33 The cost of transporting
the prisoner to court must be paid by the party requesting the
appearance34 unless the prisoner is the party and is found to be
indigent.35 If DOC is required to bear any cost and the prisoner
receives a money judgment, the court can require the prisoner to
repay DOC for his transportation costs.36 In interpreting AS
33.30.081(b), DOC has adopted a policy that [r]eturn
transportation shall be by the most cost-effective and available
means.37 DOCs policy reasonably achieves the legislative purpose
of getting the prisoner home38 in a cost-effective manner by
providing transportation to the community nearest, or
encompassing, the place of arrest rather than to the exact
location of the arrest.39
DOCs interpretation is also more in line with reason,
practicality, and common sense40 because it avoids absurd results.
For example, it would not be practical to return a prisoner who
was arrested at or near the scene of the crime back to that
precise location, which might be the victims house or office.
DOCs decision to transport Wilson to the community of
Tenakee Springs was reasonable given the undisputed facts in this
case. It is undisputed that Columbia Cove is accessible from
Tenakee Springs by a 3.5 mile footpath; there is no indication in
the record that the path was impassable when Wilson was released
or that Wilson was physically incapable of using the path.
Wilsons sentencing statement, included by Wilson in his excerpt
in this case, alleged that Tenakee Springss regulations govern
conduct in Columbia Cove. His sentencing statement also asserted
that a community committee was formed in Tenakee Springs to
assist with law enforcement issues in Columbia Cove.
There may be circumstances in which it would be
unreasonable for DOC to simply transport a releasee to the
community nearest the locus of arrest. Indeed, even transporting
a releasee to a transportation hub within the community
encompassing the site of arrest might be circumstantially
unreasonable, because in the larger communities, such hubs might
be many miles from the site of the arrest. Consequently, factors
such as distance, terrain, physical incapacity, hazardous
conditions, and expense might have a bearing on the
reasonableness of DOCs interpretation of the statute and
regulation in a given case. The ultimate purpose of returning
prisoners to their homes or home communities to prevent
stranding them would not be served if they were transported to
their home communities but were then prevented from completing
the journey by circumstances such as terrain, weather, or
expense. Because the facts in this case are undisputed, we need
not consider these sorts of circumstances further here or attempt
to list the factors that could be relevant.41
The undisputed facts in this case support the
conclusion that Columbia Cove was part of the Tenakee Springs
community. It was therefore reasonable for DOC to provide Wilson
with transportation to Tenakee Springs upon his release and it
was not unreasonable for DOC to decline to return him to the
Columbia Cove beach near his home.
IV. CONCLUSION
For the reasons discussed above, we AFFIRM.
MATTHEWS, Justice, with whom BRYNER, Chief Justice, joins,
dissenting.
The question presented is whether the statutory
requirement that [t]he commissioner of corrections shall make
available return transportation to the place of arrest for a
prisoner who is released from custody in a state correctional
facility1 means that a released prisoner who was arrested at his
home is entitled to return transportation to his home, or merely
to the public transportation terminus in the community nearest
his home. I think the former meaning is right for the reasons
that follow.2
First, place of arrest suggests a particular spot, not
a broad geographical area.3 If the legislature had intended that
released prisoners need only be returned to the community nearest
their place of arrest4 it probably would have said so.
Second, the legislative history supports the conclusion
that it was the intent of the legislature to pay for the
transportation of a prisoner to his home if that was where he was
arrested. The assistant attorney general who explained the
objective of the statute to the House Judiciary Committee
testified that the statutes intent was to get the prisoner back
home.5
Third, considerations of fairness on which the statute
is based also suggest that a literal construction is the right
one. Just as it may be unfair to strand released prisoners in
the city of their incarceration, it can also be unfair to strand
them at the airport or ferry terminal of the community nearest
their home. This will be true where the terminal is a
significant distance from a prisoners home and the latter can be
reached only by an additional expenditure of money or effort.
The general idea of the statute is that since the state has
expended the effort to forcibly take the prisoner away from where
he was arrested, it is fair that the state expend something like
the same effort to return him after he has served his time. Most
released prisoners are impecunious and even a cab fare can be a
significant burden. Further, where cabs, buses, or water taxis,
are unavailable, simply telling a prisoner to take a hike seems
like a callous response that is inconsistent with the underlying
spirit of the statute.6
For these reasons I respectfully dissent.
_______________________________
1 Wilson states that his property is 3.25 miles from the
core area of Tenakee Springs.
2 Alyeska Pipeline Serv. Co. v. DeShong, 77 P.3d 1227,
1231 (Alaska 2003).
3 Kelly v. Zamarello, 486 P.2d 906, 911 (Alaska 1971).
4 Bartley v. State, Dept of Admin., Teachers Ret. Bd.,
110 P.3d 1254, 1261 (Alaska 2005).
5 Grimm v. Wagoner, 77 P.3d 423, 427 (Alaska 2003).
6 Natl Bank of Alaska v. Ketzler, 71 P.3d 333, 334
(Alaska 2003).
7 Alaskans for Efficient Govt v. Knowles, 91 P.3d 273,
276 n.4 (Alaska 2004) (citing Norman J. Singer, Sutherland
Statutory Construction 47.28 (6th ed. 2000)).
8 See, e.g., id. at 276 (looking to usage in prior
opinions to help define term initiative); Grimm,77 P.3d at 430,
433-34 (stating agencys interpretation of statute, while not
binding, can provide useful guidance).
9 DOCs brief quotes a definition from the fourth edition
of Blacks Law Dictionary. The more recent seventh edition does
not define place.
10 American Heritage Desk Dictionary 722 (1981).
11 Websters Third New International Dictionary 1727
(1966).
12 American Heritage Desk Dictionary 722.
13 Websters Third New International Dictionary 1727.
14 Websters Ninth Collegiate Dictionary 1102 (1990).
15 Websters Third New International Dictionary 2128.
16 Blacks Law Dictionary 1392 (7th ed. 1999).
17 Alaska Rule of Criminal Procedure 4(c)(2) states [t]he
warrant may be executed or the summons may be served at any place
within the jurisdiction of the State of Alaska.
18 DOC alleges that an arresting officer must complete a
Return form which states in part: I received the above warrant on
_______, and executed it by arresting the defendant and serving
the defendant with a copy of this warrant in _________, Alaska on
________. The March 2000 version of the same form contains
similar language.
19 See, e.g., Zehrung v. State, 569 P.2d 189, 193 (Alaska
1977) (noting place of arrest as intersection of Boniface and
Northern Lights); McCoy v. State, 491 P.2d 127, 131 (Alaska 1971)
(upholding search conducted at police station rather than place
of arrest as search incident to lawful arrest). But see Wortham
v. State, 519 P.2d 797, 799 (Alaska 1974) (using broader meaning
of place of arrest to note that due process requires preliminary
hearing on parole revocation at or reasonably near the place of
the alleged parole violation or arrest).
20 AS 33.30.160 made the Department of Public Safety
responsible for transporting all prisoners. The Department of
Public Safety and the Department of Health and Social Services
entered into an agreement that made the Department of Health and
Social Services responsible for transporting prisoners released
from a state facility. See 1977 Formal Op. Atty Gen. 39. The
Department of Corrections was then a division in the Department
of Health and Social Services. Executive Order No. 55 elevated
the Division of Corrections to a department-level agency.
Executive Order No. 55 1 (1984).
21 Register 63, October 1977.
22 House Bill (H.B.) 114, 14th Leg., 1st Sess. (1986).
23 Id.
24 H.B. 114, 12; ch. 88, 13, SLA 1986.
25 Ch. 88, 6, SLA 1986.
26 Ch. 88, 6, 12, SLA 1986.
27 Minutes of March 30, 1985, hearing before the House
Judiciary Committee, 13th Legislature (1985-86) (statement of
Michael Stark, assistant attorney general and DOC counsel).
28 Bartley v. State, Dept of Admin., Teachers Ret. Bd.,
110 P.3d 1254, 1261 (Alaska 2005).
29 In two affidavits filed in this court, Wilson referred
three times to his home in Tenakee Springs.
30 Amos W. Butler, Treatment of the Released Prisoner, 1
J. Am. Inst. Crim. L. & Criminology 403, 405 (May 1910 to March
1911).
31 See L.D. Weyand, A Study of Wage-Payment to Prisoners
as a Penal Method, 10 J. Am. Inst. Crim. L. & Criminology 558
(May 1919 to February 1920) (collecting early state statutes
regulating transportation of prisoners upon release from state
facilities).
32 Dept. of Corrections, Policies and Procedures,
Transportation Upon Release, Index # 818.07, VI. A-C (Eff. Oct.
1, 1990).
33 AS 33.30.081(f).
34 AS 33.30.081(g).
35 AS 33.30.081(h).
36 Id.
37 Dept. of Corrections, Policies and Procedures,
Transportation Upon Release, Index # 818.07, VI. B (Eff. Oct. 1,
1990).
38 Minutes of March 30, 1985, hearing before the House
Judiciary Committee, 13th Legislature (1985-86) (statement of
Michael Stark, assistant attorney general and DOC counsel, on
Tape 63, Side One).
39 The DOC investigator responding to Wilsons grievance
filed a report, which found:
Mr. Wilsons interpretation of 22 AAC 05.585
is incorrect; the state does not provide an
option to be returned to the exact place of
arrest upon release. Just as a poacher is
not returned to the bush or a bank robber
returned to the bank, Mr. Wilson shall not be
returned to the exact place of arrest. 22
AAC 05.585 is intended to prevent inmates
that have been transferred to other state
institutions from being stranded in those
cities upon their release, but rather provide
them with transportation to the city of their
arrest. . . . Mr. Wilson will be returned to
Tenakee upon his release, unless he declines
or requests an alternative destination of
equal value.
40 Grimm, 77 P.3d at 427.
41 Wilson implies in his reply brief that hiking the
footpath without a rifle in May, when brown bears are
concentrated along the beaches, would be unsafe. He never raised
this contention before the agency or in the superior court or in
his opening brief in this court. Although undue hazard, such as
from wildlife or weather, might be a factor relevant to the
reasonableness of DOCs transportation decision in a given case,
Wilson has waived any reliance on that factor here. See Zok v.
State, 903 P.2d 574, 576 n.2 (Alaska 1995) (holding that where
pro se litigant provided no substantive argument on point in his
opening brief, and only mentioned the courts alleged failure to
admit evidence in his reply brief, the issue was waived).
1 AS 33.30.081(b).
2 In my view this is a question of law on which the court
should exercise its independent judgment: Questions of law which
do not involve any particular agency expertise are reviewed under
the substitution of judgment standard. Questions of law
involving agency expertise are reviewed under the reasonable
basis test. Arnesen v. Anchorage Refuse, Inc., 925 P.2d 661,
664 (Alaska 1996) (citations omitted) (holding that the question
whether self-employment as a real estate sales agent is a job
within the meaning of a provision of the Workers Compensation Act
is a question of law suitable for judicial determination de
novo). Here the state does not argue that the term place of
arrest is something that is uniquely within the knowledge of the
Department of Corrections nor, in my opinion, could a reasonable
argument to this effect be made. It also follows that, although
subsection (d) of the statute instructs the department to issue
regulations governing the furnishing of transportation to
released prisoners, I cannot agree with the court (see Slip Op.
at 4) that this bland language could authorize a regulation in
contravention of the place of arrest requirement in (b).
3 Many Alaska communities encompass a broad area, and
sometimes much of the area is only thinly settled. Tenakee
Springs is an example. According to a state monograph, it is a
community of some 100 people, consisting of about 47 permanent
households that are situated along a single trail that parallels
the north shore of Tenakee Inlet for approximately ten miles.
Most of the houses are concentrated along a two-mile stretch near
the center of the town, but others are located along the full
length of the trail. Ken Leghorn & Matt Kookesh, Div. of
Subsistence, Alaska Dept of Fish & Game, Timber Management and
Fish and Wildlife Utilization in Selected Southeast Communities:
Tenakee Springs, Alaska 8, 13 (1987).
4 See Slip Op. at 11.
5 Slip Op. at 10 n.27.
6 Some walks home have special hazards. For example,
brown bears are common on the shores of Tenakee Inlet, and a
concentration of them exists at Indian River, which the trail
from the town core to Columbia Cove crosses. Bear encounters are
said to be on the increase both in the town core and Indian River
according to the state-sponsored community profile of Tenakee
Springs. City of Tenakee Springs, Tenakee Springs Community Plan
15-16, 33 (July 26, 2001 Revision), available at
http://www.commerce.state.ak.us/dca/plans/TenakeeSpringsrev2001.p
df. Of course it is unlikely that any particular person walking
through brown bear country will actually be attacked, but one can
never be certain, and many Alaskans in bear country carry a
firearm for protection. Recently released prisoners, such as
Wilson, presumably do not have this option.
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