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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. State, Dept of Fish & Game v. Manning (07/06/2007) sp-6138
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, | ) |
| DEPARTMENT OF FISH | ) Supreme Court Nos. S- 11170/11189 |
| & GAME, | ) |
| ) Superior Court No. | |
| Appellant/ | ) 3AN-00-08814 CI |
| Cross-Appellee, | ) |
| ) O P I N I O N | |
| v. | ) |
| ) No. 6138 - July 6, 2007 | |
| KENNETH H. MANNING, | ) |
| ) | |
| Appellee/ | ) |
| Cross-Appellant. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Sen K. Tan, Judge.
Appearances: Kevin M. Saxby, Assistant
Attorney General, Anchorage, and Gregg D.
Renkes, Attorney General, Juneau, for
Appellant and Cross-Appellee. Kenneth H.
Manning, pro se, Kasilof, Appellee and Cross-
Appellant. Will Sherman, Anchorage, for
Amicus Curiae Alaska Outdoor Council.
Before: Bryner, Chief Justice, Matthews,
Fabe, and Carpeneti, Justices. [Eastaugh,
Justice, not participating.]
FABE, Justice.
BRYNER, Chief Justice, dissenting in part.
MATTHEWS, Justice, dissenting in part.
I. INTRODUCTION
Kenneth Manning was denied a Tier II subsistence permit
for the 2000-2001 Nelchina caribou herd hunt. Manning brought
suit, contending that certain aspects of the regulation governing
the Tier II subsistence hunting permit point system discriminate
against urban hunters in violation of state constitutional
provisions requiring equal access to natural resources. Manning
challenged three criteria in the regulation used to identify
subsistence hunters eligible for the Nelchina caribou hunt: (1)
access to alternative sources of game; (2) the cost of groceries;
and (3) the cost of gasoline. All three scores are based
initially on the applicants self-reported data, but are capped
based on composite data drawn from the community where the
applicant resides. The superior court upheld the food and gas
criteria but held that the alternative sources of game criterion
was unconstitutional. We affirm.
II. FACTS AND PROCEEDINGS
Alaska Statute 16.05.258 governs the allocation of game
in subsistence areas. Under this statute, the Board of Game
identifies the portion of each game population that can be
harvested consistent with sustained yield.1 If the harvestable
portion of the population is not large enough to satisfy the
needs of all subsistence applicants, the Board restricts the
number of subsistence permits that it issues.2 The more
restrictive group of subsistence permits are called Tier II
permits.3 The Board identifies those eligible for Tier II
permits through limitations based on (1) the customary and direct
dependence on the game population by the subsistence user for
human consumption as a mainstay of livelihood, and (2) the
ability of the subsistence user to obtain food if subsistence use
is restricted or eliminated.4
5 AAC 92.070 sets out the point system for ranking Tier
II subsistence hunting permit applicants. The more points an
applicant receives, the greater the likelihood the applicant will
receive a permit. Subsection (a) describes how to measure the
applicants customary and direct dependence on the game population
by the subsistence user for human consumption as a mainstay of
livelihood.5 This subsection awards up to fifty points based on
the number of years the applicant has hunted on or eaten from the
[relevant] game population, or would have had he been permitted
to hunt.6 An additional ten points are available based on the
number of years a member of the applicants household has hunted
or eaten or would have hunted or eaten from the game population
in question.7 Manning, a veteran hunter of Nelchina caribou, was
awarded the full sixty points under subsection (a) of the
regulation. He does not challenge the constitutionality of this
subsection.
Subsection (b) of the regulation describes the process
for measuring the ability of a subsistence user to obtain food if
subsistence use is restricted or eliminated.8 Under subsection
(b), points are awarded based on the three criteria challenged in
this appeal: access to alternative sources of game, or the game
ratio (twenty points), the cost of groceries (ten points), and
the cost of gasoline (ten points). Subsection (b) provides:
The ability of a subsistence user to obtain
food if subsistence use is restricted or
eliminated may provide up to 40 points. It is
measured by the following indicators and
points:
(1) the relative availability of
alternative sources of game to the applicants
household, which may provide up to 20 points,
as measured by the formula Score = 20(I/J),
in which I/J is the percent of the applicants
households wild game that came from the Tier
II population over the past five years, in
which I stands for the amount of game
harvested by hunters from the applicants
household from the Tier II population and J
stands for the amount of game harvested by
hunters from the applicants household from
within the state; I/J may be a percent up to
but not exceeding G/H, in which G stands for
the amount of game harvested by hunters from
the applicants location from the Tier II
population and H stands for the amount of
game harvested by hunters from the applicants
location from within the hunt area and from
all reasonably accessible game hunts within
150 miles, as calculated by the department;
before January 1, 2012, the provisions of
this paragraph do not apply to Units 22 and
23 musk oxen hunts;
(2) the availability of food for
purchase in the community where most of the
applicants households store-bought food was
purchased during the past year, which may
provide up to 10 points, as calculated by the
departments current Tier II cost-of-food
index; the number of points received by an
applicant may not exceed the points
calculated by the department using the cost-
of-food index for the community nearest the
applicants residence; and
(3) the cost of gasoline in the
community where most of the applicants
households gasoline was purchased during the
past year, which may provide up to 10 points;
the number of points received by an applicant
may not exceed the points calculated by the
department using the cost of gasoline for the
community nearest the applicants
residence.[9]
Evidence before the superior court provides more detail
about how this regulation is administered. The Board calculates
the food and gas caps from grocery and gas surveys compiled
approximately every other year by the University of Alaska. The
G/H game ratio cap is based on the Boards records of Tier II and
other big game kills. The units used in the ratio are pounds of
big game meat, with standard weights ascribed to each kill of a
particular type of game. The Board determines how many permits
it can issue for a particular Tier II population in a particular
year consistent with sustainable yield. It then scores all the
applications and calculates a minimum cutoff score that will
produce the correct number of permits.10
Under the current regulatory scheme, Manning received a
Tier II subsistence permit to hunt Nelchina caribou in the five
seasons preceding the 2000-2001 season. Manning applied for, but
did not receive, a permit for the 2000-2001 season. Questions 14
through 19 of the application for the 2000-2001 hunt solicited
Mannings Tier II scoring data. Question 14 asked how many years
the applicant had hunted or eaten meat from this particular game
population, or would have hunted this population if permitted to
do so. Manning answered 36 years. Question 15a asked for the
maximum number of years any one living member of the applicants
household had hunted or eaten from this game population. Manning
again answered 36 years. Question 16 asked what percent of the
total amount of big game meat that all household members had
harvested over the past five years within this hunt area and
within 150 miles of the applicants residence came from the Tier
II population. Manning checked the box marked 91-100%.
Questions 17 and 18 asked in what community the applicant bought
most of his food and gasoline. Manning wrote down Anchorage in
response to both questions. In response to question 19, Manning
stated that Girdwood was his community of principal residence.
Based on his answers to questions 14 and 15, which
showed thirty-six years of hunting Nelchina caribou, the Board
gave Manning the full sixty points for customary and direct
dependence on the . . . game population.
The next component of Mannings score was based on the
game ratio. Had this part of his score been based solely on the
statement in his application that 91-100% of the game harvested
by his household over the past five years came from the Nelchina
caribou population, Manning would have been awarded something
close to the full twenty possible points.11 But Mannings score
was capped at 5.77, the maximum game ratio score available to
residents of Girdwood. This cap was based on the G/H ratio, or
the percent of big game meat that hunters from Girdwood harvested
in the hunt area and within 150 miles of Girdwood that came from
the Nelchina caribou population.12
The Board awarded Manning zero out of the twenty total
points available based on the cost of food and gas. Manning
received this score because the score for those who purchase most
of their food and gas in Anchorage is zero. He would have
received the same score if he had stated on his application that
he purchased most of his food and gas in Girdwood because the cap
for Girdwood residents is also zero.
Mannings total score was 65.77, the highest possible
score a Girdwood resident could get under the regulation. The
cutoff for receiving a permit in the 2000-2001 season was
approximately 68.22 points. Girdwood hunters therefore had no
chance of receiving the 68.22 minimum score for 2000-2001. The
residents of several other communities were also ineligible for
permits in 2000-2001 because the caps made it impossible for
these individuals to receive a score above the cutoff.
In July 2000 Manning filed suit alleging that the use
of the applicants community of residence in awarding points for
Tier II permits violates various provisions of the state and
federal constitutions. Both parties moved for summary judgment.
On May 11, 2003, Superior Court Judge Sen K. Tan issued
a summary judgment decision declaring that the game ratio portion
of the regulation violates sections 3 and 17 of article VIII of
the Alaska Constitution, but upholding the food and gas criteria
in the regulation. Both parties filed motions for
reconsideration. On June 16, 2003, the superior court issued an
order clarifying that its summary judgment decision applied to
the current regulation, which had been amended while the summary
judgment motions were pending. In this order, the superior court
also denied the States motion for reconsideration in all other
respects and denied Mannings motion for reconsideration. On July
24, 2003, the superior court entered final judgment declaring the
game ratio portion of the regulation unconstitutional. The State
appealed and Manning filed a cross-appeal. Manning contends that
the food and gas criteria should also be invalidated; the State
asserts that the game ratio criterion should be reinstated.
III. DISCUSSION
A. Standard of Review
We review a grant of summary judgment de novo.13 We
review constitutional questions using our independent judgment.14
B. Legal Framework for Interpreting the Equal Access
Clauses of Article VIII
Four provisions from the natural resources article of
the Alaska Constitution are relevant to this appeal.15 The equal
access clauses are article VIII, sections 3,16 15,17 and 17;18 the
sustained yield clause is contained in article VIII, section 4.19
McDowell v. State20 contains what is perhaps our most
thorough discussion of the equal access clauses as they relate to
statutes and regulations that limit access to subsistence fishing
and hunting activities. In McDowell, we held that the portion of
the 1986 subsistence statute limiting subsistence fishing and
hunting activities to rural residents violated the equal access
clauses of the Alaska Constitution. Our disposition in McDowell
was based on two alternative grounds. In Part A of McDowell, we
established that the subsistence statutes overt residency
requirement was per se impermissible. We explained that
[a]lthough [the prohibition on exclusive rights or special
privileges in] section 15 pertains only to fisheries, the
prevention of grants of exclusive or special privileges with
respect to fish and game is also one purpose of the common use
and the uniform application clauses.21 Consequently, we
concluded, grant[s] of special privileges with respect to game
based on ones residence [are] also prohibited.22
In Part B of McDowell, we established that the
subsistence statutes residency requirement was also impermissible
under an equal protection type of analysis. But while we held
that an equal protection analysis was proper and that the
subsistence statutes residency requirement could not withstand
such an analysis, we did not reach a majority consensus as to the
proper level of scrutiny to apply. The plurality opinion began
by noting that the constitution permits the use of a system to
exclude some, but not all, applicants from subsistence activities
where exclusion is required for species protection reasons.23 In
such cases, the opinion went on, assuming that the exclusionary
criterion is not per se impermissible, . . . demanding scrutiny
is appropriate.24 Therefore, [i]n reviewing legislation which
burdens the equal access clauses of article VIII, the purpose of
the burden must be at least important. The means used to
accomplish the purpose must be designed for the least possible
infringement on article VIIIs open access values.25 Employing
this equal protection analysis, the plurality opinion determined
that the interest in ensuring that those Alaskans who need to
engage in subsistence hunting and fishing in order to provide for
their basic necessities are able to do so is an important one.26
The plurality opinion nevertheless struck down the statute
because the rural-urban criterion was an extremely crude means of
furthering this interest given that many urban Alaskans have
legitimate claims as subsistence users and many rural Alaskans do
not.27 However, only two justices adopted the demanding scrutiny
test in its entirety. Justice Rabinowitz dissented from both
Parts A and B of McDowell; Justice Compton declined to comment on
Part B; and Justice Moore wrote separately to articulate a
different and relatively weaker close scrutiny test.
Like the plurality opinion, Justice Moores concurring
opinion determined that access to wildlife for subsistence
purposes . . . is [an] . . . important right.28 Unlike the
plurality opinion, however, Justice Moores concurring opinion
stopped short of declaring that this important right merited
demanding scrutiny and instead maintained that the [t]he
challenged enactment . . . should receive close scrutiny.29 As
explained in Justice Moores concurring opinion, close scrutiny
requires that the statute or regulation in question be closely
related to an important state interest.30 Because there was only
a modest correlation between the set of people who reside[d] in
areas designated as rural under the Act and the set of people who
[were] dependent upon subsistence hunting and fishing,31 Justice
Moores concurring opinion concluded that the Act was not closely
related to the States interest in ensuring that those who must
engage in subsistence hunting and fishing are able to do so.32 As
such, the subsistence statutes residency requirement could not
stand.
As we have previously noted, [w]hen a fragmented court
decides a case and no single rationale explaining the result
enjoys the assent of [the majority], the holding of the court may
be viewed as that position taken by those Members who concurred
in the judgment on the narrowest grounds.33 In McDowell, it was
Justice Moore who concurred on the narrowest grounds and his
position would therefore ordinarily be considered the courts
holding. However, Justice Moores concurrence expressly refused
to rule out the possibility that a more stringent test was
merited34 and our subsequent case law has, in fact, repeatedly
articulated although never actually applied the plurality
opinions stringent demanding scrutiny test.35 Ultimately then, it
is not entirely clear which equal protection test carries
precedential weight.
Because we hold that (1) the game ratio is
impermissible under the more lenient close scrutiny test, and (2)
the food and gas ratios are permissible under the more
restrictive demanding scrutiny test, it is unnecessary for us to
choose today between the two McDowell tests.36
C. The Rule Against Residency-Based Criteria
We first must determine whether the challenged criteria
are per se impermissible because they violate the rule against
residency-based criteria in Part A of McDowell. Manning argues
that the caps based on community of residence as applied to an
applicants game ratio, food, and gas scores constitute
impermissible residency-based restrictions. We disagree.
First, we note that as a factual matter Manning is
incorrect in his allegation that the regulation discriminates
against urban hunters and amounts to a reinstatement of the rural
preference stuck down in McDowell and Kenaitze. Of the 2000 Tier
II hunting permits issued for the 2000-2001 Nelchina caribou
hunt, 1,493 were issued to Anchorage, Palmer, and Wasilla area
residents.
Second, as a matter of law, the criteria in the
regulation are not impermissible residency-based criteria. The
criteria struck down in McDowell and Kenaitze created an
arbitrary preference based explicitly on where one lived.37 By
contrast, the criteria in 5 AAC 92.070(b) seek to measure the
applicants relative access to alternative sources of game, store-
bought food, and gasoline. The regulation calls for an
individual determination as to each applicant, and an applicant
who gets a higher percentage of his game from outside the Tier II
population than his neighbors or who purchases food and gas in a
cheaper location will receive a different score than others who
live in the same community. It is true that an applicants game
ratio, food, and gas scores are capped according to community of
residence, but these caps simply reflect the economic and
geographic realities in Alaska: that location affects access to
game populations and the expense of food and gas. The only way
to eliminate any reference to residence from a regulation that
seeks to measure access to alternative game and relative food and
gas prices would be to rely solely on individual, self-reported
data that is not verifiable and would in any case still likely be
strongly correlated to an applicants place of residence.
Virtually any method of measuring the ability of the subsistence
user to obtain food if subsistence use is restricted or
eliminated under AS 16.05.258(b)(4)(B)(iii), including criteria
(such as income), that are facially completely unconnected to
residence, will likely produce results that are closely
correlated with residence. In light of this reality, Part A of
McDowell must be read to prohibit only criteria that are
explicitly and exclusively based on residence because such
classifications are based on the arbitrary assumption that
Alaskans in certain locations engage in subsistence activities
while those in other communities do not.
We conclude that the residency caps in 5 AAC 92.070(b)
do not violate the rule against residency-based criteria in Part
A of McDowell.
D. Equal Protection Analysis
McDowells demanding scrutiny and close scrutiny tests
both require that restrictions on access to natural resources
serve an important purpose. One purpose of Alaskas subsistence
statute and its implementing regulations is to ensure that
Alaskans who need to engage in subsistence hunting and fishing in
order to provide for their basic necessities are able to do so.38
In McDowell, we held that this interest is an important one for
the purposes of an equal protection analysis.39 We therefore must
determine the fit between this important interest and the
criteria challenged by Manning the game ratio, the cost of food
score, and the cost of gasoline score.
1. The game ratio
The game ratio in 5 AAC 92.070(b)(1) seeks to measure
the relative availability of alternative sources of game. Access
to other game is clearly a reasonable criterion to use in
determining an applicants dependence on subsistence hunting.
But Manning argues that the regulations game ratio scoring system
is not an accurate method of measuring an applicants access to
other game. We agree.
As described in more detail above, 5 AAC 92.070(b)(1)
provides for an applicant to be assigned up to twenty points
based on the percent of the applicants households game that came
from the Tier II population over the past five years. An
individual applicants score cannot exceed the game ratio for his
community of residence, which measures what percent of the
communitys total big game catch in the surrounding area and in
Nelchina comes from the Nelchina caribou herd.
As Judge Tan pointed out in his summary judgment
decision, the game ratio cap does not accurately measure a
communitys access to alternative game. The formula assumes that
hunters actual use patterns reflect the relative availability of
game for a community. This is not necessarily the case. Some
local hunters may seek out particular Tier II game populations
for non-subsistence reasons such as aesthetics, sport, or taste.
A community may draw much of its game from a particular Tier II
population and thus have a high game ratio score even if other
sources of game are readily available. Relying on use patterns
may be particularly problematic in smaller communities where
hunting patterns of a small number of individuals may
significantly affect the communitys game ratio score.40
The second problem with the game ratio formula is what
the superior court called the ratcheting effect: every year that
a community is excluded from the Tier II hunt, the game ratio
will go down; after five years of exclusion the game ratio will
be zero. Once a community is excluded because of the game ratio
cap, no one in that community will be able to secure a permit
unless the State decides to issue more permits. The State argues
that the downward ratchet is fair because the only way a
community drops out of contention for the permits is if there is
an initial determination that it has access to alternative
sources of game. But this argument is based on two questionable
assumptions: that the communitys game ratio was an accurate
measure of alternative resources to begin with, and that the
availability of alternative game will remain stable once the
community has been excluded from the Tier II hunt.
The game ratio is a structurally infirm and ultimately
inaccurate method of measuring applicants access to alternative
food sources. We conclude, therefore, that 5 AAC 92.070(b)(1) is
not closely related to the States interest in ensuring that
Alaskans who need to engage in subsistence hunting are able to do
so. As such, the regulation violates sections 3, 15, and 17 of
article VIII of the Alaska Constitution.
Our holding does not imply that it is impossible for
the State to craft a constitutionally acceptable regulation
measuring an applicants alternative sources of game. To name
just one possibility, a community cap based directly on the
availability of other big game hunts reasonably accessible to a
given community would seem to be a more accurate measure than the
current regulation.41 Nor does our holding imply that such a
regulation must produce uniformly perfect results. Our decision
today merely holds that the current game ratio regulation is so
faulty as to not satisfy the requirements of the Alaska
Constitution.
2. The food and gas criteria
Manning also challenges the food and gas criteria in 5
AAC 92.070(b)(2) and (3). Under the regulation, up to ten points
each are awarded based on the cost of food and gasoline in the
community where the applicants household purchases most of its
food and gas.42 Both scores are capped based on the cost of food
and gas in the applicants community of residence.
The cost of groceries is a reasonable way to determine
the applicants access to store-bought food if subsistence use is
restricted, and the cost of gasoline is a reasonable way to
measure the applicants ability to access alternative game hunts
through gasoline-powered vehicles such as cars and snowmachines.
The residency caps are also reasonable. These caps are designed
to measure the relative availability of alternative food; the
fact that an individual applicant may purchase most of his food
in a location that is more expensive than where he lives simply
indicates that that applicant is not making the most cost-
effective use of the alternative sources of food available to
him. A community-wide cap makes sense because the cost of food
and gas in that location is the same for all applicants.
Manning argues that these criteria are not narrowly
tailored because criteria based on income would be a more
accurate measure of dependence on subsistence hunting. The Board
rejected using income as a criterion after serious consideration.43
The primary difficulty with an income classification is that
there is evidence in the record that in rural areas members of
wealthier households are often the primary subsistence hunters.
They share their harvest with poorer members of the community who
are unable to hunt for themselves but who depend on the game to
meet their basic necessities of life.44 Therefore, income
criteria would not necessarily correspond to the neediness of the
end-consumer of the meat, and income-based classifications would
not necessarily be more narrowly tailored than the food and gas
criteria for achieving the States purposes. Moreover, income-
based criteria would involve costly and time-consuming evaluation
of individual financial data for thousands of Alaskans.45 To most
precisely measure an applicants ability to pay for store-bought
food, the Board would have to take into account not just the
applicants taxable income, but other measures of wealth and net
worth in a complicated calculation similar to college financial
aid determinations or individualized child support awards under
Alaska Civil Rule 90.3.
We conclude that the food and gas criteria in 5 AAC
92.070(b)(2) and (3) are narrowly tailored and designed for the
least possible infringement on article VIIIs open access values.46
They therefore survive constitutional review even if subjected to
demanding scrutiny.
E. Mannings Rule 11 Motion
During discovery, Manning made requests for admissions.
In a response signed by Board official Steven Schwartz, the State
replied as follows:
2. Please admit that plaintiff Kenneth
H. Manning was automatically denied
approximately 34.23 points . . . based on his
community of residence of Girdwood and
because he bought the majority of his
groceries and gasoline over the previous year
in Girdwood and/or Anchorage.
Answer: Denied. Mr. Manning was not
automatically denied any points. His scoring
was based on his ability to obtain food if
subsistence hunting is restricted or
eliminated.
Another request asked whether the Board predetermined a fixed
amount of exclusionary points for Girdwood residents. This
request was also denied. Manning sent a letter to Assistant
Attorney General Kevin Saxby accusing Schwartz of fraud and
perjury. Saxby replied by letter, stating that Mannings
accusation was false and that in my opinion, Mr. Schwartz has a
cause of action against you for defamation, should he ever decide
to pursue it. Manning then moved for sanctions against Saxby for
violations of Alaska Civil Rule 11. The superior court denied
the motion during oral argument. Manning appeals the denial of
that motion.
Decisions on Rule 11 motions are reviewed for abuse of
discretion.47 Rule 11 prohibits attorneys from knowingly filing
pleadings and court papers that are not well grounded in fact.48
Alaskas Rule 11 no longer provides for mandatory sanctions,49 but
sanctions may be imposed for a violation of Rule 11 under Civil
Rule 95.50 It was not an abuse of discretion to deny sanctions
here. The use of the words automatically denied and
predetermined a fixed amount of exclusionary points in Mannings
requests for admissions were provocative, and the States denials
to these questions as worded did not amount to false statements.
Moreover, the States responses could not have misled Manning
about the process for reviewing permit applications: in the same
set of responses, the State admitted that residents of Girdwood
could not have achieved the minimum successful score. The
superior court did not err in denying Mannings Rule 11 motion.51
IV. CONCLUSION
We hereby AFFIRM the order of the superior court.
BRYNER, Chief Justice, dissenting in part.
I disagree with the courts conclusion that Alaskas game-
ratio provision violates the Alaska Constitutions equal
protection and uniform application clauses.1 As the court
correctly recognizes, the constitutional test we must apply is
the one described in Justice Moores McDowell concurrence.2 But
the court misapplies that test here. In my view, because the
challenged regulation uses individualized criteria that are
facially neutral and reasonably respond to an actual resource
allocation need, the regulation would fail to pass constitutional
muster only if Manning proved that the game ratio resulted in an
actual injustice as applied to his case. He has not made this
showing.
McDowell considered a subsistence law that expressly
discriminated on the basis of residency, categorically denying
subsistence hunting rights to all urban residents. Moreover, the
law at issue in McDowell applied at the Tier I level; it
restricted subsistence rights in the absence of a determination
that the restriction was necessary to protect subsistence
resources.3 Faced with these circumstances, the McDowell
pluralitys demanding scrutiny test articulated a constitutional
standard to be used when a law not specifically driven by
resource needs favors one group of subsistence users over another
on the sole basis of residency.
The justices who joined in Part A of McDowell took
pains to emphasize that they did not imply that the constitution
bars all methods of exclusion where exclusion is required for
species protection reasons.4 Rather, they held only that the
residency criterion used in the 1986 act which conclusively
excludes all urban residents from subsistence hunting and fishing
regardless of their individual characteristics is
unconstitutional.5 McDowell thus specifically recognized that
more latitude to regulate access would be allowed under a Tier II
determination, when restrictions served actual resource-
protection needs.
In his concurring opinion, even though acknowledging
that the case presented an overtly discriminatory geographical
classification scheme,6 Justice Moore articulated a more moderate
understanding of Alaskas constitutional standard. Because he
believed that subsistence rights were similar to the important
right to engage in economic endeavor addressed in State v.
Enserch Alaska Construction, Inc.,7 Justice Moore used the same
mid-level scrutiny test we adopted in Enserch.8 This test asks
whether the challenged law is closely related to an important
state interest.9 In light of the challenged laws overt and
exclusive reliance on the distinction between urban and rural
residency, Justice Moore found that its means were not closely
related to its goals. Yet at the same time, Justice Moore
stressed that [a] law providing for individual determinations of
eligibility would in my view be sufficiently tailored to the
states interest to withstand a constitutional challenge.10 As
already noted, Justice Moores view on this point governs here.11
Unlike the law disputed in McDowell, the subsistence
regulation now at issue, 5 AAC 92.070, was adopted in response to
a Tier II determination and thus serves a specific resource-
protection need. Furthermore, the regulation uses an
individualized, facially neutral point system in determining
eligibility not an overtly discriminatory geographical
classification scheme.12 Nothing in Justice Moores McDowell
concurrence suggests that a rational, individualized, Tier II
regulation of this kind could be deemed too loosely tailored to
pass facial constitutional muster merely because, in theory, one
of its measurements might not always perfectly fit its goal.
Nor does any post-McDowell case suggest the need for
such a demanding means-to-end fit. In fact, our post-McDowell
case law suggests the opposite. In Gilbert v. State,13 which the
opinion cites as re-articulating the McDowell pluralitys least
possible infringement test,14 this court actually refused to
apply any form of the McDowell test, even Justice Moores moderate
close relationship requirement.
Like McDowell, Gilbert involved a constitutional
challenge to a regulation that, on its face, adopted an overtly
discriminatory classification a commercial fishing regulation
that favored the salmon fishery in Chignik over a competing,
mixed-stock interceptor fishery in Stepovak in which most salmon
were headed for their natal streams around Chignik.15
While McDowell had described this sort of facially
disparate treatment as a geographical classification scheme,16
Gilbert referred to it as a non-uniform classification[].17
Citing McDowell and other Alaska cases, Gilbert acknowledged that
an analysis under [the Uniform Application Clause of article
VIII] may invoke more stringent review. 18 Gilbert went on to
observe that the more stringent test applies when the court
reviews fish and game regulations creating non-uniform
classifications.19 But the court in Gilbert nonetheless declined
to apply this stringent test to the non-uniform classification
before it because the competing fisheries were not similarly
situated. The court instead emphasized that [t]he regulation in
question reflects an allocation decision authorized under article
VIII, section 4 of the state constitution which the Board must
necessarily make between users involved in different fisheries.20
On this basis, Gilbert held that the regulations provisions were
therefore subject to conventional rational-basis review: Such
decisions are within the power of the Board, so long as they are
not arbitrary and unreasonable and are consistent with and
reasonably necessary to the conservation and development of
Alaska fishery resources. 21
In effect, then, Gilbert recognized that, even when a
fish and game regulation creates an openly non-uniform
classification, the conventional rational-basis standard applies
if the regulation deals with an issue of resource allocation that
article VIII, section 4 allows the board to address and if the
board finds that existing circumstances make it necessary to
decide the issue. The situation here is functionally identical
to the one in Gilbert: because this case involves a Tier II
determination, the disputed regulation addresses an allocation
decision that article VIII authorizes and that the Board must
necessarily make22 in order to preserve scarce game resources.
Under Gilbert, it follows that the classifications at issue here
identify competing resource users who are not similarly situated
and that the regulation must accordingly be reviewed under the
conventional rational basis test.
But even if Gilbert did not dictate this conclusion,
Justice Moores concurring opinion in McDowell would require no
more than the moderately heightened equal protection review we
applied in Enserch, which demands a close but not perfect means-
to-end fit. Under either approach Gilberts or Justice Moores
there would be no reason to declare the game ratio invalid.
Todays opinion implicitly acknowledges that the
challenged regulation is a facially neutral provision and seems
to agree that the game ratio serves an important purpose: to
assess the availability of alternative game resources in a given
community.23 The opinion identifies no reason to suspect that
the game ratios neutral requirements might conceal an invidious
discriminatory intent. And it points to no record evidence
showing that it generally produces arbitrary results or actually
resulted in unfairness here. Instead, based solely on the
theoretical possibility that the ratios formula may be . . .
problematic in smaller communities or that its ratcheting effect
might reflect questionable assumptions, the court broadly
declares the game ratio structurally infirm and ultimately
inaccurate,24 and categorically invalidates it as
unconstitutional in all applications.
This proclamation turns the usual presumption of
constitutionality on its head by requiring the state to
demonstrate that a seemingly reasonable (though perhaps not
invariably perfect) regulation actually works in practice.25
More fundamentally, it misapplies the McDowell concurrences
moderately heightened equal protection standard: instead of
inquiring whether the game ratio is reasonably suited to
achieving its goal, and thereby results in a reasonably close
means-to-end fit, the courts approach leaves no room for slippage
or error. By proclaiming the ratio to be structurally infirm and
ultimately inaccurate as a matter of law merely because it
theoretically might produce an anomalous result in a marginal
case, todays opinion effectively applies a test even more
demanding than the least-restrictive-alternative test discussed
by the McDowell plurality.
In addition to straying from the settled analysis under
McDowells concurrence, moreover, the opinion breaks sharply from
the established standard for declaring a law to be facially
unconstitutional that is, invalid in all applications rather
than just in the way it applies to the particular case at hand.
As this court has recently recognized, even under a relaxed
standard of facial review it would be improper to declare [a law]
invalid on its face if it has a plainly legitimate sweep. 26
Accordingly, there would be no basis for declaring the game ratio
to be facially invalid unless Manning showed either that it
arbitrarily discriminated on the basis of residency in many or
most situations, and thus had no plainly legitimate sweep.
Here, Manning produced no evidence to support a finding
of general invalidity, and todays opinion makes no such finding.
The assumptions and structural defects that the opinion
identifies as potentially flawed would at most create a risk of
appreciable error only in exceptional situations.27 And even if
exceptional circumstances suggested the presence of a significant
risk of error with respect to a particular community or Tier II
permit, these circumstances would not necessarily establish that
the game ratio had inaccurately measured available alternative
sources of game; instead, they would merely indicate a possible
inaccuracy that would warrant further investigation before
deciding whether to grant or deny the disputed permit.
Admittedly, Mannings case presents some circumstances
suggesting that the game ratio might have produced a statistical
anomaly in his case. To this extent, todays opinion correctly
observes that the states decision to deny Mannings application
might reflect potentially questionable assumptions. But whether
this potential for inaccuracy actually produced an inaccurate
result is subject to reasonable dispute. The state, for
instance, insists that in Mannings situation, the game ratio
actually did what it was supposed to do: it accurately determined
that Manning had alternative sources of game within easy reach.
In my view, this factual dispute calls for a case-
specific resolution. On the one hand, if Manning shows that the
game ratio probably did produce an anomalous result as applied in
his case, then the state should be barred from relying on
subsection .070(b)(1) to deny permits to Manning and similarly
situated Girdwood residents. On the other hand, absent proof
that the game ratio inaccurately reflected Mannings ready access
to alternative sources of game, I see no basis for barring the
state from applying the ratio to him or anyone else. As todays
opinion recognizes, Manning is similarly situated to applicants
who were granted a Nelchina permit only if he is correct in
asserting that the regulations in question are unconstitutional
because they are an inaccurate means of determining which
applicants have access to alternative food sources.28 Absent
proof that the game ratio lacks a plainly legitimate sweep, then,
it follows that Manning should at a minimum have been required to
show a likelihood that the regulation actually produced
inaccuracy as applied to his situation.
Yet the superior court did not decide, or even
consider, whether applying subsection .070(b)(1) to Mannings case
would actually cause injustice in his situation. Instead, the
court summarily struck the regulation as unconstitutional in all
applications based on a speculative risk of inaccuracy in
seemingly marginal applications. Because this ruling converted
the ratios potential but unproved inaccuracy in exceptional
situations into an unwarranted facial disqualification in all
applications, I would reverse and remand for an evidentiary
hearing to determine whether the regulation actually did unfairly
deny Manning his Tier II permit.
I therefore dissent from todays opinion upholding the
superior courts judgment.
MATTHEWS, Justice, dissenting in part.
The main question posed by this case is whether 5 AAC
92.070(b)(1), (2), and (3), which enumerate criteria for
determining who qualifies for Tier II subsistence hunt permits,
are valid. I conclude that none of the challenged criteria
contribute to the statutorily required individualized
determination of which applicants most need a subsistence permit
to meet their food needs. The regulations are therefore
inconsistent with the subsistence use statute and should be
invalidated.
This appeal involves a challenge to regulations 5 AAC
92.070(b)(1), (2), and (3). Normally, when reviewing an
administrative regulation, this court limits its examination to
(1) whether the regulation is reasonable and not arbitrary; and
(2) whether the regulation is consistent with the statute and
reasonably necessary to its purposes.1 While a rational basis
standard would apply if the issue involve[d] agency expertise or
the determination of fundamental policy questions on subjects
committed to an agency, generally, as here, determining whether a
regulation is consistent with a statute is a question of
statutory interpretation to which we should apply our independent
judgment.2 We reach constitutional issues only when a case
cannot be fairly decided on statutory or other grounds.3 Since
in my view none of the challenged regulations are consistent with
the subsistence use statute, we need not reach the issue of
whether or not the regulations are constitutional.
The subsistence use statute requires that when
determining which subsistence uses to allow, the Board
distinguish among subsistence users4 in part by making a
determination about the ability of the subsistence user to obtain
food if subsistence use is restricted or eliminated.5 As this
language indicates, the statute requires the Board to make
individualized, user-by-user determinations of who is best able
to obtain food from non-subsistence sources.
None of the challenged regulations assist the Board in
making the statutorily required individualized determinations.
The game ratio in 5 AAC 92.070(b)(1) does not advance an
individualized determination of who can best obtain alternate
food in part because, as Judge Tan pointed out, it is not an
accurate method of measuring access to other game.6 The other
two challenged portions of the regulation, 5 AAC 92.070(b)(2) and
(3), which award points that are capped according to the cost of
food and gasoline in the community nearest the applicants
residence, presume that an individuals ability to secure food is
governed by community-based costs. While food and fuel costs
undoubtedly have a slight impact on an applicants ability to
obtain food, differentials in prices are much less determinative
of a subsistence applicants ability to access other sources of
food than are differentials in income.7
In McDowell v. State, we acknowledged that the
subsistence use statute then in effect had the important purpose
of ensur[ing] that those Alaskans who need to engage in
subsistence hunting and fishing in order to provide for their
basic necessities are able to do so.8 We concluded that the
urban/rural distinction drawn by the statute was an extremely
crude means to accomplish this purpose.9 While the subsistence
use statute has changed somewhat in the intervening years, its
purpose of ensuring that Alaskans who need to are allowed to
engage in subsistence activities remains the same. The food and
gas criteria, just like the rural/urban criterion, are extremely
crude means of determining who most needs to engage in
subsistence activities. In my opinion they are of such slight
relevance to the question of individual need as to be
inconsistent with the purpose of the statute. Because the
criteria fail to withstand the standard of review normally
applied to regulations, they should be invalidated.
In order to advance the statutes purpose of making an
individualized determination of who among subsistence applicants
is least able to access alternative sources of food, the Board
needs to take into account applicants income. While it is the
province of the Board to draft new regulations, one way for the
Board to obtain income information would be to ask applicants to
list their adjusted gross income as reported on their most recent
tax return.10
The state and subsistence users have raised concerns
about the fairness and feasibility of using income as a criterion
for determining which applicants receive Tier II permits. An
income-based criterion can be structured to address many of the
concerns raised. For instance, since the cost of living does
affect (although it does not determine) a persons ability to
obtain food, the Board could decide to adjust each applicants
income to account for cost-of-living differentials. As for the
point that members of wealthier rural households are often the
primary subsistence hunters who then share with poorer members of
the community, the Board can create regulations that take into
account the income of those who rely upon the applicant for food.
If the Board is worried about applicants manipulating the process
by having poorer household members apply for permits, it can
order occasional audits to make sure that those people doing the
hunting are the ones in whose names the permits were issued.
Many of the objections made to an income criterion are
also overstated. For instance, an income criterion is not
uniquely manipulable. Under a portion of the subsistence
regulations not challenged in this appeal, the Board already asks
applicants to report how long they have hunted or eaten meat from
a specific game population. This presents a ready opportunity for
the unscrupulous to stretch the truth. An income criterion would
serve as an improvement, since applicants will be less able to
mislead when their answers are easily verifiable by reference to
their tax returns. When the Board considered an income
criterion, it also expressed concerns that asking for income
information would compromise the privacy interests of applicants.
However, the Tier II Subsistence Hunting Permit Application
already asks applicants to provide their social security numbers,
which are also sensitive personal information. Presumably the
Board has privacy safeguards in place that could be applied to
income information.
Finally, the Board has objected to the administrative
burden it believes an income criterion would create. In the
words of one Department of Fish and Game analyst, [w]e dont want
to be in the business of collecting income tax return forms for
20,000 Alaskans and and process that every year. However, an
income criterion would not necessarily result in the Board being
inundated by tax returns from all applicants. Having asked
applicants both to include their adjusted gross income on the
permit application form and to provide the Board with permission
to obtain a copy of the applicants tax return, the Board could
limit its acquisition of tax returns to those circumstances in
which it wished to verify an applicants income response.
For the reasons stated, the challenged regulations are
not consistent with the subsistence use statute. They therefore
should be invalidated.
_______________________________
1 AS 16.05.258(b).
2 AS 16.05.258(b)(4)(B).
3 5 AAC 92.062(a).
4 5 AAC 92.062(a). This regulation implements the
portion of AS 16.05.258(b)(4)(B) that is currently in effect.
The statute includes a third criterion, the proximity of the
domicile of subsistence user to the stock or population, AS
16.05.258(b)(4)(B)(ii), but this criterion has been found
unconstitutional and is no longer in force. State v. Kenaitze
Indian Tribe, 894 P.2d 632, 638 (Alaska 1995).
5 5 AAC 92.070(a); AS 16.05.258(b)(4)(B)(i).
6 5 AAC 92.070(a)(1).
7 5 AAC 92.070(a)(2).
8 5 AAC 92.070(b); AS 16.05.258(b)(4)(B)(iii).
9 5 AAC 92.070(b). This is the version of the regulation
in effect when the superior court issued its decision and
discussed by the parties in their briefs. A prior version
applied when the summary judgment motions were filed, but the
superior court held that there is no material distinction between
the two forms of the regulation. The parties do not appear to
dispute this determination.
10 5 AAC 92.062(b). If the number of applicants with the
next highest score below the cutoff score exceeds the number of
remaining permits, a random drawing is used to allocate these
permits.
11 Under 5 AAC 92.070(b), an individuals score before the
cap is applied is calculated by the formula 20(I/J), where I/J
is the percent of the applicants households wild game that came
from the Tier II population over the past five years, or 91-100%
in Mannings case.
12 5 AAC 92.070(b).
13 Koyukuk River Basin Moose Co-Management Team v. Bd. of
Game, 76 P.3d 383, 385 (Alaska 2003).
14 Legislative Council v. Knowles, 988 P.2d 604, 607 n.11
(Alaska 1999).
15 The parties to this case have focused their briefings
and oral arguments almost exclusively on constitutional concerns,
and we have drafted our opinion to be responsive to these
concerns. However, as the dissent authored by Justice Matthews
correctly asserts, it is our usual practice to defer
consideration of constitutional issues until we have reviewed and
dismissed the potential statutory grounds for deciding a case.
See State, Dept of Health & Soc. Servs. v. Valley Hosp. Assn,
Inc., 116 P.3d 580, 584 (Alaska 2005). We therefore briefly
pause to note that our holding today would not be affected by a
consideration of the statutory issue raised by this case namely,
whether the challenged ratios represent a valid exercise of the
Boards authority under the subsistence use statute. AS
16.05.258. First, because we conclude that the game ratio is
unconstitutional, that ratio cannot be sustained regardless of
whether or not it is a valid exercise of the Boards authority.
Second, because we conclude that both the food and gas ratios are
a constitutionally accurate means of differentiating between
Alaskans who need to subsistence hunt or fish and those who do
not, there is no reason to suspect that these ratios are not also
accurate enough to be consistent with the Boards authority to
distinguish between Alaskans on the basis of their ability . . .
to obtain food if subsistence use is restricted or eliminated.
AS 16.05.258(b)(4)(B)(iii).
16 Article VIII, section 3 provides: Common Use.
Wherever occurring in their natural state, fish, wildlife, and
waters are reserved to the people for common use.
17 Article VIII, section 15 provides: No Exclusive Right
of Fishery. No exclusive right or special privilege of fishery
shall be created or authorized in the natural waters of the
State. This section does not restrict the power of the State to
limit entry into any fishery for purposes of resource
conservation, to prevent economic distress among fishermen and
those dependent upon them for a livelihood and to promote the
efficient development of aquaculture in the State.
18 Article VIII, section 17 provides: Uniform
Application. Laws and regulations governing the use or disposal
of natural resources shall apply equally to all persons similarly
situated with reference to the subject matter and purpose to be
served by the law or regulation.
19 Article VIII, section 4 provides: Sustained Yield.
Fish, forests, wildlife, grasslands, and all other replenishable
resources belonging to the State shall be utilized, developed,
and maintained on the sustained yield principle, subject to
preferences among beneficial uses.
20 785 P.2d 1 (Alaska 1989).
21 Id. at 9.
22 Id. Similarly, in Kenaitze Indian Tribe, 894 P.2d at
639, we struck down AS 16.05.258(b)(4)(B)(ii) the portion of the
Tier II statute that would have made proximity of the domicile of
the subsistence user to the stock or population a criterion for
qualifying for subsistence use. Noting that our opinion in
McDowell makes it clear that residence-based criteria are not
permissible, we held that under the reasoning of McDowell, the
eligibility to participate in Tier II subsistence hunting and
fishing cannot be based on how close one lives to a given fish or
game population. Id. We determined that this criterion could be
severed from the Tier II subsistence statute, leaving in force
the criteria based on customary and direct dependence on the fish
stock or game population and the ability of the subsistence user
to obtain food if subsistence use is restricted or eliminated
under AS 16.05.258(b)(4)(B)(i) and (iii). Id. at 639.
23 McDowell, 785 P.2d at 9.
24 Id.
25 Id. at 10.
26 Id.
27 Id. at 10-11.
28 Id. at 13 (Moore, J., concurring and dissenting).
29 Id.
30 Id.
31 Id.
32 Id.
33 In re Adoption of Erin G., 140 P.3d 886, 890 (Alaska
2006) (quoting Marks v. United States, 430 U.S. 188, 193 (1977))
(internal quotations omitted).
34 McDowell, 785 P.2d at 13 n.1 (Moore, J., concurring and
dissenting) (noting [i]t may be that the enactment should receive
even greater scrutiny under the uniform application clause;
however, the court has not decided that question).
35 See Kenaitze Indian Tribe, 894 P.2d at 641 (recognizing
that the more rigorous least restrictive alternative test [is]
employed in cases where entry into a user class is restricted);
Gilbert v. State, 803 P.2d 391, 399 (Alaska 1990) (stating that
in order [t]o satisfy the uniform application clause of article
VIII, state fish and game regulations creating non-uniform
classifications must have a legitimate and important purpose and
[t]he means used to further the important state purpose must be
carefully drawn and designed for the least possible infringement
on article VIIIs open access values) (internal quotations and
citations omitted).
36 The dissent authored by Chief Justice Bryner contends
that neither McDowells demanding scrutiny test nor its close
scrutiny test are applicable to the case at hand. In support of
this contention, the dissent characterizes Gilbert, 803 P.2d 391,
as holding, [i]n effect, that the conventional rational-basis
standard applies if the regulation deals with an issue of
resource allocation that article VIII, section 4 allows the board
to address and if the board finds that existing circumstances
make it necessary to decide the issue. Bryner Dissent at 28.
Based upon this characterization, the dissent goes on to conclude
that because the case at hand involves an allocation decision
that article VIII authorizes and that the Board must necessarily
make it like the regulation in Gilbert should be reviewed
under the conventional rational basis test. Bryner Dissent at 28.
However, the dissent misconstrues our holding in Gilbert.
Gilbert did not identify a new occasion for applying the rational
basis test; and it did not create a new, lower level of
constitutional scrutiny for regulations that are necessary. To
the contrary, Gilbert actually re-articulated a more stringent
test. See id. at 399 (stating that the statute or regulation in
question must be carefully drawn and designed for the least
possible infringement on article VIIIs open access values)
(internal quotations omitted). We applied the rational basis
test to the regulation challenged in Gilbert not because the
regulation was necessary, but because the fisheries affected by
the regulation were not similarly situated. As we noted in
Gilbert, section 17 of the Alaska Constitution like other equal
protection-based provisions only applies to those who are
similarly situated. Id. (noting that the Stepovak fishery is
not similarly situated to the Chignik fishery and concluding that
article VIII, section 17 does not apply to this case). Our
reasoning in Gilbert was not novel and we have reached similar
conclusions in other cases. See Baxley v. State, 958 P.2d 422,
429-30 (Alaska 1998) (holding that the uniform application clause
was not violated [b]ecause no other entity [was] similarly
situated); Tongass Sport Fishing Assn v. State, 866 P.2d 1314,
1318 (Alaska 1994) (upholding a salmon harvesting regulation that
gave preference to commercial fishers because sport and
commercial fishers are not similarly situated). In the case at
hand, Manning asserts that the regulations in question are
unconstitutional because they are an inaccurate means of
determining which applicants have access to alternative food
sources. If he is correct, then the regulations treat similarly
situated applicants dissimilarly.
37 See Kenaitze, 894 P.2d at 633; McDowell, 785 P.2d at 1-
2.
38 Subsection (b)(4)(B)(iii) of the enabling statute
orders the Board to devise regulations that distinguish among
subsistence users based on their ability . . . to obtain food if
subsistence use is restricted or eliminated. AS
16.05.258(b)(4)(B)(iii); cf. McDowell, 758 P.2d at 10 ([o]ne
purpose of the 1986 [subsistence] act is to ensure that those
Alaskans who need to engage in subsistence hunting and fishing in
order to provide for their basic necessities are able to do so).
The statute and regulations may have other purposes as well, such
as preserving a traditional culture and way of life. Subsection
(B)(i) of the enabling statute orders the Board to devise
regulations that distinguish among subsistence users based on
their customary and direct dependence on the fish stock or game
population. AS 16.05.258(b)(4)(B)(i) (emphasis added).
39 785 P.2d at 10.
40 This problem may be mitigated, but not eliminated, by
the use of five-year averages and lumping very small communities
with neighboring communities for purposes of the calculation.
41 To avoid running afoul of Part A of McDowell, this cap
would have to be used in tandem with individual applicant
responses, as is done in the current regulation.
42 The food and gas scores are calculated separately, and
applicants may report that the location where they purchase most
of their food is not the same as the location where they buy most
of their gas.
43 In addition to the difficulties with an income
criterion we discuss, the Board rejected the income approach in
part because both rural and non-rural hunters strongly opposed
disclosing their income to the Board on privacy grounds and
because of concern that applicants would manipulate the process
by having poorer members of their household apply for the
permits.
44 See Sophie Th‚riault et al., The Legal Protection of
Subsistence: A Prerequisite of Food Security for the Inuit of
Alaska, 22 Alaska L. Rev. 35, 68 & n.199 (2005) (noting that in
some Native communities subsistence harvests are shared among
every member in the community and that [t]he best hunters . . .
share what is left with relatives, older people, families with
sick and injured hunters, and others who need the meat) (quoting
testimony of Robert Newlin, an Inupiat elder, before the State
Board of Game).
45 At a Board hearing where the Tier II regulation was
discussed, a research analyst for the Department of Fish and Game
stated, [w]e dont want to be in the business of collecting income
tax return forms for 20,000 Alaskans and and process that every
year.
46 McDowell, 785 P.2d at 10.
47 Keen v. Ruddy, 784 P.2d 653, 658 (Alaska 1989).
48 Rule 11 provides, in pertinent part: The signature of
an attorney or party [on a pleading, motion, or other paper of a
party represented by an attorney] constitutes a certificate by
the signer that the signer has read the pleading, motion, or
other paper; that to the best of the signers knowledge,
information, and belief formed after reasonable inquiry it is
well grounded in fact and is warranted by existing law or a good
faith argument for the extension, modification, or reversal of
existing law. . . . Alaska R. Civ. P. 11. Unlike Federal Rule
of Civil Procedure 11, Alaskas rule does not provide for
sanctions.
49 See Alaska State Employees Assn v. Alaska Pub.
Employees Assn, 813 P.2d 669, 671 n.4 (Alaska 1991) (citing
Alaska Supreme Court Order 1009 (Oct. 12, 1989) (effective date
Jan. 15, 1990)) (noting that a 1989 amendment deleted the
mandatory sanctions provision from Rule 11).
50 Cf. In re Schmidt, 114 P.3d 816, 820 (Alaska 2005)
(holding that penalties provided in Rule 95 for violations of
these rules apply to violations of the Alaska Rules of Civil
Procedure).
51 Manning also appeals the denial of his multiple motions
to remove Judge Tan from the case. Manning asserts that Judge
Tan should be removed because he allegedly committed legal error
in a previous order. Legal error is not among the grounds for
disqualification of a judicial officer for cause under AS
22.20.020. The proper recourse for a litigant who believes the
superior court has committed legal error is to appeal the
superior courts decision. We therefore affirm the denial of
Mannings motions to remove Judge Tan from the case.
1 Alaska Const. art. I, 1; art. VIII, 17.
2 Slip Op. at 12 (discussing Justice Moores concurrence
in McDowell v. State, 785 P.2d 1, 12-14 (Alaska 1989)).
3 See McDowell, 785 P.2d at 1-2 (describing challenged
subsistence fishing and hunting provisions).
4 Id. at 9.
5 Id.
6 Id. at 12 (Moore, J., concurring).
7 State v. Enserch Alaska Constr., Inc., 787 P.2d 624
(Alaska 1989).
8 McDowell, 785 P.2d at 13 (Moore, J., concurring).
9 Id.
10 Id.
11 See In re Adoption of Erin G., 140 P.3d 886, 890
(Alaska 2006) ( [W]hen a fragmented court decides a case and no
single rationale explaining the result enjoys the assent of five
Justices, the holding of the court may be viewed as that position
taken by those Members who concurred in the judgment on the
narrowest grounds. ) (quoting Marks v. United States, 430 U.S.
188, 193 (1977)).
12 Cf. McDowell, 785 P.2d at 12 (Moore, J., concurring).
13 Gilbert v. State, 803 P.2d 391 (Alaska 1990).
14 Slip Op. at 13 n.36.
15 Gilbert, 803 P.2d at 393, 398-99.
16 McDowell, 785 P.2d at 12 (Moore, J., concurring).
17 Gilbert, 803 P.2d at 399.
18 Id. at 398 (citing McDowell, 785 P.2d at 10).
19 Id. at 399.
20 Id. (footnote and citations omitted).
21 Id. (quoting Meier v. State, Bd. of Fisheries, 739 P.2d
172, 174 (Alaska 1987) (applying rational-basis standard of
review)).
22 Cf. id.
23 Slip Op. at 16-17.
24 Slip Op. at 17-18.
25 Cf. Treacy v. Municipality of Anchorage, 91 P.3d 252,
260 (Alaska 2004) (A duly enacted law or rule . . . is presumed
to be constitutional.) (citing Kodiak Island Borough v. Mahoney,
71 P.3d 896, 899-900 (Alaska 2003)).
26 Id. at 260 n.14 (quoting Troxel v. Granville, 530 U.S.
57, 85 (2000) (Stevens, J., dissenting)).
27 As the opinion notes, the ratio may be particularly
problematic in smaller communities where hunting patterns and the
ratios ratcheting effect combine to exclude all members of the
community from a Tier II hunt in perpetuity. See Slip Op. at 17-
18.
28 Slip Op. at 13 n.36.
1 Lauth v. State, 12 P.3d 181,184 (Alaska 2000) (internal
quotation marks omitted).
2 OCallaghan v. Rue, 996 P.2d 88, 94 (Alaska 2000).
3 State, Dept of Health & Soc. Servs. v. Valley Hosp.
Assn Inc., 116 P.3d 580, 584 (Alaska 2005).
4 AS 16.05.258(b)(4)(B).
5 AS 16.05.258(b)(4)(B)(iii).
6 5 AAC 92.070(b)(1) also violates article VIII, section
3 of the Alaska Constitution. In State v. Kenaitze Indian Tribe,
we explained that because section 3 reserves to the people for
common use wild fish and game [w]herever occurring, it is
particularly strong in requiring that proximity to the resource
be a neutral factor. 894 P.2d 632, 638-39, n.21 (Alaska 1995)
(quoting Alaska Const. art. VIII, 3). Based on section 3, we
concluded in Kenaitze that eligibility to participate in Tier II
subsistence hunting and fishing cannot be based on how close one
lives to a given fish or animal population. Id. at 638. As
currently written, 5 AAC 92.070(b)(1) provides a cap on the
number of points an applicant for a Tier II permit can receive.
The cap is determined in part by the amount of game hunters from
the applicants community harvested from all reasonably accessible
game hunts, with reasonably accessible defined as within 150
miles. It is true that the proximity factor employed by AS
16.05.258(b)(4)(B)(ii), which we invalidated in Kenaitze, and the
factor used in 5 AAC 92.070(b)(1) are calculated differently: AS
16.05.258(b)(4)(B)(ii) denied applicants Tier II subsistence
permits if they resided too far away from a specific fish or game
population, whereas 5 AAC 92.070(b)(1) operates to deny
applicants permits if they live too close to alternative fish or
game populations frequently harvested by members of their
community. Despite the differences in calculation, both the
previously invalidated portion of the statute and the currently
challenged regulation involve consideration of impermissible
proximity factors and are, in my opinion, unconstitutional. The
plurality opinions proposed alternative for 5 AAC 92.070(b)(1),
namely a community cap based directly on the availability of
other big game hunts reasonably accessible to a given community,
(Slip Op. at 18) operates to make the impermissible proximity
calculation even more obvious and does nothing to correct the
constitutional infirmity.
7 This can be understood by thinking about two people,
one living in Anchorage and one living in Dillingham, a community
where food costs much more than it does in Anchorage. University
of Alaska Fairbanks Cooperative Extension Service, Cost of Food
at Home for a Week in Alaska (June 1999), available at
http://www.uaf.edu/coop-ext/fcs/FCS_June_1999.htm (listing the
cost to feed a family of four for a week as $100 in Anchorage as
opposed to $174 in Dillingham, which amounts to $5,200 and $9,048
a year, respectively). If the person in Dillingham is a member
of one of the communitys 150 households with an annual income of
over $100,000, that person has a much better ability to obtain
food, even with the difference in food prices, than does a member
of one of the 11,822 households in Anchorage with an annual
income of less than $20,000 a year. U.S. Census 2000 data about
household income in 1999, available at
http://factfinder.census.gov. Specifically, in these examples,
the Dillingham resident must expend only about 9% of household
income for food, whereas food expenses for the Anchorage resident
amount to 28% or more of household income.
The same analysis applies if one compares Anchorage
with communities in the Copper River Basin. People in both of
these areas have easy access to the Nelchina caribou herd, the
game population that has prompted the litigation in this and
other cases. The difference in how much it costs to feed a
family of four in Anchorage ($5,200 a year) and the Copper River
Basin ($6,292 a year) is not as great as the difference between
Anchorage and Dillingham, yet the same conclusion can be reached.
Cost of Food at Home. If the person in the Copper River Basin
is, for instance, a member of one of the 20 households in
Glennallen with an income over $100,000, that person is much
better able to obtain food than the person in Anchorage with an
income of less than $20,000 a year. U.S. Census 2000 data about
household income in 1999, available at
http://factfinder.census.gov. The Glennallen resident would be
spending around 6% of household income for food, as opposed to
the 28% or more of household income devoted to food by the
Anchorage resident.
8 785 P.2d 1, 10 (Alaska 1989).
9 Id.
10 Applicants whose income is such that they do not need
to file a tax return could so state on their application.
Current thresholds generally are $8,200 for a single person and
$16,400 for a married couple. Presumably applicants whose income
is below these thresholds would meet any income-based eligibility
criteria.
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