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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Alaska Fish and Wildlife Conservation Fund v. State (3/27/2015) sp-6992

Alaska Fish and Wildlife Conservation Fund v. State (3/27/2015) sp-6992

         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,  

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ALASKA FISH AND WILDLIFE                             )  

CONSERVATION FUND,                                   )        Supreme Court No. S-14516  


                           Appellant,                )        Superior Court No. 4FA-11-01474 CI  


                  v.                                 )        O P I N I O N  


STATE OF ALASKA and                                  )        No. 6992 - March 27, 2015  

AHTNA TENE NENE',                                    )  


                           Appellees.                )  


                  Appeal  from  the  Superior  Court  of  the  State  of  Alaska,  


                  Fourth Judicial District, Michael P. McConahy, Judge.  

                  Appearances:  Michael C. Kramer, Borgeson & Kramer, P.C.,  

                  Fairbanks, for Appellant.  Michael G. Mitchell, Sr. Assistant  


                  Attorney  General,  Anchorage,  and  Michael  C.  Geraghty,  

                  Attorney General, Juneau, for Appellee State of Alaska.  John  

                  M.  Starkey, Hobbs Straus Dean & Walker, Anchorage, for  

                  Appellee Ahtna Tene Nene'.  

                  Before:  Fabe, Chief Justice, Winfree, Stowers, Maassen, and  


                  Bolger, Justices.   

                  MAASSEN, Justice.  


                  Regulations  promulgated  by  the  Alaska  Board  of  Game  establish  two  

different systems of subsistence hunting for moose and caribou in Alaska's Copper Basin  


----------------------- Page 2-----------------------


region:  (1) community hunts for groups following a hunting pattern similar to the one  

traditionally   practiced   by   members   of   the   Ahtna   Tene   Nene'   community;   and  


(2)  individual  hunts.     A  private  outdoors  group,  the  Alaska  Fish  and  Wildlife  


Conservation Fund, argues that this regulatory framework violates the equal access and  

equal protection clauses of the Alaska Constitution by establishing a preference for a  


certain user group.  The Fund also argues that the regulations are not authorized by the  


governing statutes, that they conflict with other regulations, and that notice of important  


regulatory changes was not properly given to the public.  But because we conclude that  


the Board's factual findings support a constitutionally valid distinction between patterns  


of subsistence use, and because the Board's regulations do not otherwise violate the law,  

we affirm the superior court's grant of summary judgment to the State, upholding the  

statute and the Board regulations against the Fund's legal challenge.   



                   The Copper Basin Community Hunt Area, located in Southcentral Alaska,  


                                                                                                           After public  

includes Game Management Units 11 and 13 and a portion of Unit 12. 

hearings,  the  Board  made  extensive  findings  about  the  area  in  2006,  describing  the  


                                                                                              The Board recognized  

customary and traditional subsistence use of moose and caribou. 

the existence of a community-based pattern of subsistence hunting, originating with the  

          1        5  Alaska  Administrative  Code  (AAC)   85.025  (2012);  5  AAC  85.045;  

5 AAC 92.050; 5 AAC 92.072.  

          2        In a recent case involving these same parties, we discussed Ahtna's and the  


Board's respective histories with Unit 13 moose and caribou.  See Ahtna Tene Nene' v.  


State, Dep't of Fish & Game, 288 P.3d 452, 455-57 (Alaska 2012).  

          3        The Board made these findings by considering the eight criteria described  


in  5  AAC  99.010(b).    We  upheld  these  eight  criteria  in  Alaska  Fish  &  Wildlife  

Conservation Fund v. State, Dep't of Fish & Game, Bd. of Fisheries, 289 P.3d 903  

(Alaska 2012).  

                                                             -2-                                                      6992

----------------------- Page 3-----------------------

Ahtna  Athabascan  communities  in  the  region  and  "later  adopted  by  other  Alaska  


residents."  This community-based pattern, the Board found, was characterized by use  

of  the  entire  caribou  or  moose,  leaving  only  the  antlers  behind,  and  by  events  of  

"[w]idespread community-wide sharing" after the harvest.  


                     In 2011the Board made supplemental findings about a second subsistence  


hunting  pattern  in  the  Copper  Basin.    This  pattern,  according  to  the  Board,  was  an  


individual  use  pattern  that  occurs  "among  households  and  families"  but  unlike  the  


community-based  pattern  is  not  "linked  to  extensive  networks  of  cooperation  and  


sharing."  The individual use pattern occurs mostly during the fall, and it centers upon  


areas accessible from the road system.   Individual subsistence users, like community  

subsistence           users,      tend      to    return      to     their     "well-known             and      long-established  

camping/hunting sites," but they tend to travel much farther to get there.  The individual  


use pattern  does not tend to use organ meat; meat sharing is "less formal"; and the "peer  

pressure to share is far less pronounced."  


                     Based on these two recognized patterns of subsistence hunting, the Board  


                                                                                            in  Unit  13  into  community  

adopted  regulations  that  bifurcated  subsistence  hunts 


harvests and individual hunts.   A community harvest permit is issued to members of a  

group  of  25  or  more  who  agree  to  engage  in  the  hunting  practices  described  in  the  


Board's 2006 findings, including meat sharing and organ salvage.   The community  


moose hunt has a longer hunting season, has a larger geographic area, and is allocated  

           4         Subsistence hunting statutes divide subsistence hunts into two tiers:  Tier   

I hunts are those in which the resource is abundant enough to satisfy all subsistence uses;       

Tier II hunts are those in which it is not.  AS 16.05.258(b)(1)-(4);                                       see State v. Morry,  

836 P.2d 358, 365-66 (Alaska 1992).  

           5         5 AAC 85.045;  5 AAC 92.050; 5 AAC 92.072.  

           6         5 AAC 92.072(c)(1).  

                                                                   -3-                                                            6992

----------------------- Page 4-----------------------


up to 70 moose of any size.   For caribou, the season, hunting area, and size of animal  


that may be hunted are the same for both the community harvest and individual permit  


holders, but the community hunt is allocated up to 300 caribou.   (What this allocation  

means in practical terms is addressed later in this opinion.)  


                    These regulations were challenged in the superior court by the nonprofit  

Alaska Fish and Wildlife Conservation Fund.  The Fund argued that the regulations  



violated the Administrative Procedure Act,  the subsistence hunting statutes, and article 

VIII of the Alaska Constitution.  The Fund asked the court to enjoin all community  

harvest hunts and to strike any statutes and regulations purporting to allow them.  The  

Fund also asked the court to require the revisor of statutes to strike or amend statutes that  

Alaska's courts have ruled unconstitutional in the past.  The local tribe, Ahtna Tene  

Nene', was granted leave to intervene as a defendant.  


                    All parties agreed that the issues before the superior court could be decided  


on summary judgment.  The superior court ruled in favor of the State, holding that the  


challenged regulation had been properly noticed; that the regulatory scheme was within  

          7        Id.  Individual hunters may only harvest bull moose with spike-fork, 50- 

inch, or 4 brow tine antlers, while community harvesters may harvest any bulls but no  


more than 70 that could not have been harvested by individual hunters. 5 AAC 85.045.  


The community harvesters' any-bull allocation increased to 100 for the 2013 season.  


5 AAC 85.045 (am. 7/1/13).  



                    See 5 AAC 85.025.  In testimony before the Board, a representative from  

the  Alaska  Outdoor  Council,  the  Fund's  sister  organization,  expressed  concern  that  

community harvest permits would be issued per person while individual permits would  


be issued per household.  This potential inequity never occurred because by special  

regulation the Board limited hunters in Unit 13 to one caribou per household regardless  


of whether they held a community harvest permit or an individual permit. See 5 AAC  

92.071(a); 5 AAC 92.072(c)(2)(A).  

          9         AS 44.62.010 - .950.  

                                                              -4-                                                       6992

----------------------- Page 5-----------------------


the Board's statutory power because the subsistence hunting statutes allow the Board to  


distinguish between different subsistence uses; and that the community harvest permit  

system did not violate the equal access provisions of the Alaska Constitution, article  


VIII, because participation in a community harvest was open to all Alaska residents.  The  

Fund now appeals.  


                    Summary judgment may be granted only when there is no genuine issue of  


material fact and the moving party is entitled to judgment as a matter of law, and we  


                                                                                     In a review of agency action  

therefore review grants of summary judgment de novo. 

we  substitute  our  judgment  for  that  of  the  agency  when  interpreting  the  Alaska  


Constitution and deciding issues of law.                       But "[w]hen the interpretation of a statute or  


other question of law implicates 'agency expertise as to complex matters or as to the  

formulation of fundamental policy,' we defer to the agency's interpretation so long as  


                                                             If "a case may be fairly decided on statutory  

it has a 'reasonable basis' in the law." 



grounds or on an alternative basis, we will not address the constitutional issues." 

          10        Gilbert v. State, Dep't of Fish & Game, Bd. of Fisheries, 803 P.2d 391, 394   

(Alaska 1990) (citing Southeast Alaska Constr. Co. v. State, Dep't of Transp.                                   , 791 P.2d  

339, 342 (Alaska 1990); Grand v. Municipality of Anchorage, 753 P.2d 141, 143 n.3                            

(Alaska 1988)).  



                   Alaska Fish & Wildlife Conservation Fund v. State, Dep't of Fish & Game,  

Bd. of Fisheries , 289 P.3d 903, 907 (Alaska 2012) (citing Koyukuk River Basin Moose  

Co-Mgmt. Team v. Bd. of Game, 76 P.3d 383, 386 (Alaska 2003)).  



                     Wilber v. State, Commercial Fisheries Entry Comm'n, 187 P.3d 460, 465  

(Alaska 2008) (quoting Rose v. Commercial Fisheries Entry Comm'n , 647 P.2d 154, 161  

(Alaska 1982)).  



                   Id.  (citing  State,  Dep't  of  Health  &  Soc.  Servs.  v.  Valley  Hosp.  Ass'n,  

116 P.3d 580, 584 (Alaska 2005)).  

                                                              -5-                                                       6992

----------------------- Page 6-----------------------

a regulation is adopted in accordance with the Administrative Procedure Act and the   

legislature intended to give the agency discretion, our review is limited to ascertaining  


whether the regulation is consistent with its authorizing statutory provisions and whether  

it is reasonable and not arbitrary.14  



          A.	      The Community Harvest Permit System Does Not Violate Article VIII  

                    Of The Alaska Constitution.  


                   The      Fund      argues      that     the    community          harvest       permit      system       is  

unconstitutional because it creates classifications that result in disparate treatment of  

Alaskans  who  are  otherwise  similarly  situated.    The  superior  court  rejected  this  


argument, reasoning that "[a]ny Alaskan is eligible to participate in either opportunity  

[i.e., the individual hunt or the community harvest] by complying with the regulatory  

requirements for each."  We agree.  

                    Sections 3, 15, and 17 of article VIII are the equal access clauses of the  


Alaska Constitution; they provide the constitutional framework within which the State  


regulates subsistence hunting and fishing.  Section 3, the common use clause, provides  

that "[w]herever occurring in their natural state, fish, wildlife, and waters are reserved  


to the people for common use."  Section 17, the uniform application clause, requires that  


"[l]aws and regulations governing the use or disposal of natural resources . . . apply  


equally to all persons similarly situated with reference to the subject matter and purpose  

to be served by the law or regulation."  Section 15 provides that there shall be "[n]o  


exclusive right or special privilege of fishery . . . in the natural waters of the State";  

though  the  clause  addresses  only  fishing,  we  apply  its  underlying  principles  when  

          14	      Id.  

                                                             -6-	                                                         6992  

----------------------- Page 7-----------------------


interpreting sections 3 and 17.    Together, these provisions "share at least one meaning:  

exclusive or special privileges to take fish and wildlife are prohibited."16  

                    The equal access clauses are not implicated by a regulation that applies  



equally to all the State's citizens.                  To be invalid under these clauses, a regulation must  


                                                                                               "[W]e have consistently  

place "limits . . . on the admission to resource user groups."  


defined 'user groups' in terms of the nature of the resource (i.e., fish or wildlife) and the  



nature of the use (i.e., commercial, sport or subsistence)."                                We have refused to define  

                                                                                                                           20 and  

"user groups" based on a "particular means or method of access" to the resource, 


we have declined to recognize a constitutional right to "convenient" access.                                            Instead,  


we have repeatedly held that "[i]nconvenience is in no sense the equivalent of a bar to  


eligibility for participation in subsistence hunting and fishing and does not suffice to  


trigger an analysis under the equal access clauses."                               

          15        McDowell v. State , 785 P.2d 1, 9 (Alaska 1989).  

          16        Id. at 6.  

          17        Interior Alaska Airboat Ass'n v. State, Bd. of Game , 18 P.3d 686, 695  

(Alaska  2001)  (citing Alaska  Fish  Spotters  Ass'n  v.  State,  Dep't  of  Fish  &  Game ,  


838 P.2d 798, 804 (Alaska 1992)).  

          18         Tongass Sport Fishing Ass'n v. State, 866 P.2d 1314, 1318 (Alaska 1994)  


(internal citations omitted); see also Interior Alaska Airboat Ass'n , 18 P.3d at 695.  



                    Alaska Fish Spotters , 838 P.2d at 803.  

          20        Id.  

          21        State v. Kenaitze Indian Tribe, 894 P.2d 632, 640 (Alaska 1995).  



                    Interior Alaska Airboat Ass'n , 18 P.3d at 695 (quoting Kenaitze Indian  

Tribe, 894 P.2d at 640) (internal quotation marks omitted).  

                                                                -7-                                                         6992

----------------------- Page 8-----------------------

                     In  Alaska  Fish   Spotters  Ass'n  v.  State ,  we  reviewed  a  challenge  to  a  


regulation that prohibited the aerial spotting of salmon in Bristol Bay.                                            Despite the  

Association's  argument  that  the  regulation  "eliminated  their  'historical'  and  'long  


enjoyed' access to the fishery resource" as a unique user group, we concluded that the  


common use clause does not obligate the State to "guarantee access to a natural resource  


                                                                      We further explained that although "each  

by a person's preferred means or method." 

ban directly affected only a small number of people who had previously used the banned  


tool" and "precluded a preferred use of the fisheries resource," the bans applied equally  


to all persons in the State and did not preclude all uses of the resource.                                     We noted other  


ways the members of the Association could access the fishery resources besides the one  


they preferred:  they "may access the resource in the same manner open to any other  

commercial fishers.  They may participate in industries which support the fishery harvest.  


They may continue to use their planes to spot fish before an open commercial fishing  



period and to transport supplies and personnel for commercial fishing clients." 

concluded that the regulation was "a permissible limitation on the means and methods  


which  any  person  may  use  to  take  salmon  in  Bristol  Bay"  and  did  not  violate  the  

Constitution's common use clause.27  

          23         838 P.2d at 799-800.  

          24        Id. at 801.  

          25        Id. at 802.  

          26        Id.  

          27        Id.  

                                                                 -8-                                                          6992

----------------------- Page 9-----------------------


                    In this case, the relevant "user group" is subsistence hunters, which means  



all Alaskans, urban or rural.                All Alaskans are eligible to receive a community harvest  


permit; the only requirement for obtaining one is collaboration with other resource users.  

Like the members of the Fish Spotters Association, hunters who choose not to join a  

community group have another way to access moose and caribou:  they can apply for an  


individual hunting permit. The requirement of joining a group may well be inconvenient  


for those who lack a ready community; but inconvenience is not a bar to eligibility for  

participation, and it is therefore insufficient to raise a constitutional claim under the equal  

access clauses.29  

                    The  Fund  also  argues  that  AS  16.05.330(c)  and  5  AAC  92.072(d)  are  

facially invalid under article VIII.  The superior court found that while these provisions  


"could be applied in a manner offensive to article VIII,"  they could also be applied  


                    "[A] party raising a constitutional challenge to a statute bears the burden  

of demonstrating the constitutional violation.  A presumption of constitutionality applies,  


and doubts are resolved in favor of constitutionality."                              The Fund's main complaint  

          28        McDowell v. State , 785 P.2d 1, 9 (Alaska 1989) (holding that admission to     

subsistence user groups could not be based on rural residency).  

          29        The Fund argues that the regulations are unconstitutional under our decision  

in  Grunert  v.  State,  109  P.3d  924  (Alaska  2005).    In  Grunert  we  invalidated  a  


cooperative salmon fishery, but we did so under the Limited Entry Act, not article VIII.  

Id. at 932-46.  As the State points out in its brief, there is "no analog to the Limited Entry  

Act or other statutory limitation on the Board's authority to regulate in the subsistence  

[hunting] context."  We agree with the State that Grunert does not control our decision  





                    Estate of Kim ex rel. Alexander v. Coxe , 295 P.3d 380, 388 (Alaska 2013)

(alteration in original) (quoting Harrod v. State, Dep't of Revenue , 255 P.3d 991, 1000- 


                                                              -9-                                                       6992

----------------------- Page 10-----------------------


about AS 16.05.330(c) is that it "was passed as part of a comprehensive rural preference  


subsistence statute intended by the Governor and legislature to circumvent this Court's  



1985 Madison decision."                   But we will uphold a statute against a charge that it is facially  


unconstitutional even if it might sometimes create problems as applied, as long as the  


statute "has a plainly legitimate sweep."                         And the Fund admits the statute can be read  


constitutionally: "At most, AS 16.05.330(c) gives the Boards discretion to consolidate  

and streamline the permitting process by issuing permits to areas, villages, communities,  



or groups."  The Fund's facial challenge to the statute's constitutionality therefore fails. 

          B.         The Community Harvest Regulations Are Authorized By Statute.  


                     The Fund's challenge to the statutory authority for the community harvest  


system  raises  three  questions:    (1)  whether  the  Board  has  the  authority  to  adopt  

regulations  that  grant  permits  to  communities;  (2)  whether  such  regulations  can  

permissibly differentiate among various patterns of use of a subsistence resource; and  


01 (Alaska 2011)).  

          31         The reference is to Madison v. Alaska Dep't of Fish & Game                                , 696 P.2d 168  

(Alaska 1985), in which we held   that subsistence uses could not be constitutionally  

limited to members of communities that had historically practiced subsistence hunting  

and fishing.  



                    State v. Planned Parenthood of Alaska, 171 P.3d 577, 581 (Alaska 2007)  


(quoting Treacy v. Municipality of Anchorage, 91 P.3d 252, 260 n.14 (Alaska 2004))  

(internal quotation marks omitted).  



                     The Fund also urges us to strike several unconstitutional statutes.  But the  


Fund does not state which statutes are unconstitutional or what authority we have to  


rewrite statutes.  We find this issue waived as inadequately briefed and do not consider  


it here.  See Adamson v. Univ. of Alaska, 819 P.2d 886, 889 n.3 (Alaska 1991) ("[W]here  


a point is given only a cursory statement in the argument portion of a brief, the point will  

not be considered on appeal.").  

                                                               -10-                                                          6992

----------------------- Page 11-----------------------

(3) whether the regulations at issue here provide a "reasonable opportunity" for each  

subsistence use pattern.   We answer all three questions in the affirmative.  


                   First, under AS 16.05.330(c) the Board "may adopt regulations providing  

for the issuance and expiration of subsistence permits for areas, villages, communities,  

groups,  or  individuals  as  needed  for  authorizing,  regulating,  and  monitoring  the  


subsistence harvest of fish and game."   This plain statutory language authorizes the  

issuance of community permits.  

                   Second, AS 16.05.258(b)(2) not only grants the Board the authority to  


differentiate between subsistence uses, it requires the Board to adopt regulations that  


"provide a reasonable opportunity for subsistence uses" of those game populations that  

                                                                                          34  Here, after the Board  

are "customarily and traditionally taken or used for subsistence."                                             

identified  the  two  customary  and  traditional  subsistence  use  patterns  of  moose  and  


caribou in the Copper Basin - the community use pattern and the individual use pattern  

- it was statutorily required to "provide a reasonable opportunity" for these subsistence  


uses  of  the  relevant  game  populations.                    The  Board's  findings  described  two  very  


different use patterns, with different hunting areas and seasons, different parts of the  


animal consumed, and different cultural and social traditions associated with the hunt.  

          34       AS 16.05.258(a), (b)(2)(A).  

          35       AS 16.05.258(b)(2)(A).  

                                                           -11-                                                        6992  

----------------------- Page 12-----------------------



Because both patterns are "subsistence uses,"                         the Board was required to provide "a  

reasonable opportunity" for each of them.37  


                   The Board did so by its creation of the parallel community harvest and  

individual permit systems.  The permit conditions for the community harvest closely  


track the Board's 2006 findings of customary and traditional use.  The Board found that  

a community hunting pattern "was originally defined by the Ahtna Athabascan residents"  


but was "then adopted and modified by other local settlers in the early 20th century."  

The  Board  found  that  "[m]ost  of  the  long-term  subsistence  patterns  in  this  area  are  

community-based," and that  

                   specialized  hunters  tend  to  provide  for  the  community  at  


                   large, sometimes or often taking more than necessary for their  


                   own family's use in their capacities as community providers,  

                   and  to  fulfill  social  and  cultural  obligations.    Community  

                   subsistence activities are then divided among members and  

                   further  introduced  into  traditional  patterns  of  barter  and  

                   exchange.  Thus, some harvest and others process, distribute,  

                   receive and utilize the results of the harvest.  

The  community  harvest  permits  reasonably  provide  for  this  use  by  allowing  "a  


community or group of 25 or more  to  select, from their group members, individual  

          36       AS 16.05.940(33) (Subsistence uses are the "noncommercial, customary  

and  traditional  uses  of  wild,  renewable  resources  .  .  .  for  direct  personal  or  family  

consumption as food, shelter, fuel, clothing, tools, or transportation, for the making and  


selling of handicraft articles out of nonedible by-products of fish and wildlife resources  

taken for personal or family consumption.").  



                   AS 16.05.258(b)(2)(A).  We observe that the Fund's challenge is based on  


what it views as the Board's preferential treatment of one subsistence user group over  


another.    It  does  not  directly  contend  that  holders  of  individual  subsistence  permits  

lacked a "reasonable opportunity," only that the opportunities in the community hunt  

were better.  

                                                            -12-                                                      6992

----------------------- Page 13-----------------------

harvesters who may possess particular expertise in hunting to harvest wildlife resources  

on behalf of the community or group."  


                   Nor was the group size of 25 chosen arbitrarily.  The Board was concerned  


that without a minimum size, "groups of two or three people [could] come in and create  


a very huge administrative burden."  The Board set the group membership at 25 "to  


ensure that it really is a communal experience, and not just two hunting buddies together,  

that  there  really  is  some  level  of  interaction  and  sharing  and  that  there's  a  genuine  


group."  This tracks the Board's 2006 findings about the community use pattern, which  


showed that the community or group potentially benefitting from a hunt was larger than  

a nuclear family - it involved "all family members, elders, [and] others in need."  


                    The community use pattern also involves the "salvage and use [of] all parts  

of the harvested animal, in conformance with traditions prohibiting waste."  Hunters  

retrieve "the entire carcass and all bones, hide, head, heart, liver, kidneys, stomach, and  


fat," leaving only the antlers behind.  Permit conditions therefore require meat salvage,  

the taking of "[a]ll edible meat from the frontquarters, hindquarters, ribs, neck, and  

backbone, as well as the heart, liver, kidneys, and fat."  

                   Also involved in the community use pattern is "[w]idespread community- 


wide sharing." Unlike use patterns in which hunters "are completely free to share, or not  


to share, as they see fit," the community pattern comes with a social obligation to share  

the game with others.  This sharing "plays a key economic role in distributing essential  

food  supplies  throughout  the  community."    Permit  conditions  therefore  require  


community  harvest permit holders  to  participate  in  "at least one  communal  sharing  


                    The community harvest permit also authorizes a larger hunting area than  


that open to individual hunters.  Community harvest permit holders are allowed to hunt  

                                                            -13-                                                       6992

----------------------- Page 14-----------------------


moose in all of Game Management Units 11 and 13 and part of Unit 12.                                                  Individuals  


are limited to Unit 13.39  This distinction is based on the Board's 2006 and 2011findings  


about the different hunting areas frequented by community and individual hunters.  The  


Board  found  that  community  hunters  in  the  Copper  Basin  have  "an  intimate  and  


exclusive relationship between the user and a very particular set of places generally in  


close proximity to the hunter's residence."  Community hunters traditionally do not  


travel outside the Copper Basin to hunt, even when caribou and moose are hard to find.  


The Board found that individual hunters, in contrast, traditionally hunt in areas reached  

by road from Anchorage and Fairbanks, along the Denali and Glenn Highways, both of  

which are mostly within Unit 13; and they tend to go where the game is.40  

                     We now consider whether the Board's regulations specific to the moose  


hunt and those specific to the caribou hunt satisfy the "reasonable and not arbitrary"  

standard of review.41  

                     1.        Moose hunting  

                     Community harvest hunters are permitted to hunt one bull moose of any  

size for each person on the community group's list, while individual hunters are limited  


to bull moose with spike-fork antlers, 50-inch antlers, or antlers with four or more brow  

          38         The 2011-12 hunt conditions opened only Unit 13 to caribou hunting by   

community harvest permit holders, "due to conservation concerns for adjacent caribou  


          39         5 AAC 85.045.  

          40         See  Unit 13: Nelchina-Upper Susitna, ALASKA   DEPARTMENT OF  FISH  &  



   AME (May 8, 2012),  


           41        See Wilber v. State, Commercial Fisheries Entry Comm'n                                     , 187 P.3d 460,  

465 (Alaska 2008).  

                                                                 -14-                                                           6992

----------------------- Page 15-----------------------


tines on one side.             Community harvest hunters also have a longer season:  August 10  

to September 20, as opposed to September 1 to September 20 for individuals.43                                                 The  


Fund argues that this provides the community harvest hunters with "an exclusive hunting  

opportunity" and is therefore impermissible.  


                    We conclude, however, that the Board made findings sufficient to support  


some season and size differences between community and individual hunts. Simply put,  

the community hunts are more likely to occur close to home, where it is harder to find  


moose; a longer season and fewer size restrictions help counter this difficulty.  During  


a 2011 Board of Game proceeding, a supporter of community hunts testified that the "50- 


inch antlered moose is . . . pretty scarce around where I hunt and it's usually pretty warm.  

They're usually way up in the mountains.  Having a restriction for 50-inch antlers . . .  


makes [it] a hardship for . . . getting a moose. . . .  I took my daughter there last year, and  


. . . we saw a lot of bull moose, but . . . they aren't . . . 50-inch moose.  All small antlers."  

At an earlier hearing in 2010, there was testimony that in early fall "all the moose are  


high during that time and the three brow tine and four brow tines are up high. . . . [Y]ou  


might find a spike fork near a road, but . . . people didn't really get any moose."  The  


community use pattern may require a longer hunting season because community harvest  


hunters traditionally "keep hunting as close to home as reasonably possible," "travel[ ]  


shorter distances to hunt," and "still prefer to walk in to hunting areas and maintain  


permanent camps." If the community harvest permit holders hunt in the same areas each  


year  and  do  not  travel  in  search  of  better  hunting  opportunities,  it  is  reasonable  to  


conclude that they will need a longer season in order to find legal moose.  In addition,  

          42        5 AAC 85.045   (providing for "1 bull per harvest report by community  

harvest permit only . . .").  

          43        5 AAC 85.045.  Community and individual subsistence hunters have the  

same season for caribou.  5 AAC 85.025.  

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the Board found in 2006 that community harvest hunters hand "down the hunting and  

fishing knowledge, values and skills through family oriented experiences," which require  


"relatively long summer and fall camping trips."  Although the Board heard evidence  



that the individual hunt would also benefit from a longer season,                                 we cannot say that the  


Board's adoption of a regulation setting a longer season and fewer size restrictions for  

the community hunt is arbitrary or unreasonable.45  

                    2.        Caribou hunting  

                    The community harvest caribou hunt allows hunters to take one animal per  

                                                  46                                                                             47  


group member, up to 300 caribou.                      Individual hunters may also take one caribou each. 


The Board, before adopting this regulation, discussed whether 300 caribou was a quota  


allocated to the community hunt, allowing the community hunters to take up to that many  


animals even if the individual hunt were closed; it also discussed the 300 caribou as an  


absolute  cap  on  the  number  that  community  groups  could  harvest.    In  practice,  the  

          44        For example, the 2011 Board findings describing the individual subsistence  

hunting pattern note that "[a]ll hunters currently tend to focus their harvest efforts during  


the  late  summer  and  early  fall,  when  caribou  and  moose  are  in  their  best  physical  

condition and relatively accessible from the road system."  The Board found that the  


individual hunting pattern also involved passing down "lore about how and where to  


hunt . . . from generation to generation."  Furthermore, in the same session in which it  

adopted its 2011 findings, the Board rejected a proposal to allow non-community harvest  


members to engage in early moose hunting in Unit 13.  The Board decided that even a  


short general hunt in August was not sustainable.  



                    See Interior Alaska Airboat Ass'n. v. State, Bd. of Game, 18 P.3d 686, 690  

(Alaska 2001) ("In determining whether a regulation is reasonable and not arbitrary  

courts are not to substitute their judgment for the judgment of the agency.  Therefore  


review consists primarily of ensuring that the agency has taken a hard look at the salient  


problems and has genuinely engaged in reasoned decision making.").  

          46        5 AAC 85.025(a)(8).  

          47        Id.  

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----------------------- Page 17-----------------------

Department has not treated the number of caribou assigned to the community harvest as   

a  quota.     In  2011,   the  Department   closed  the  individual   hunt   by   emergency  order,  

explaining that the 2011-2012 harvest quota of 2,400 caribou had nearly been reached   

- individual hunters had taken 1,603 caribou, community hunters had taken 82, federal  



subsistence hunters had taken 361, and the holders of drawing permits had taken 311. 

This closure left the community harvest and federal subsistence hunts open because  



"additional harvest [was] expected to be negligible."                                     In 2013, both the individual and  


community subsistence hunts were closed on October 10, despite the fact that only 112  


caribou had been harvested under the community harvest permits.                                                    

                      Reading  the  regulatory  language  in  light  of  the  Department's  practical  


application of it, the grant of "up to 300 caribou" does not appear to be a quota that  


favors community hunters at the expense of individuals.  Rather, it is an upper limit  


based on an estimate of the number of caribou that community hunters are expected to  


take each year, a number supported by the evidence before the Board.  When the Board  


was discussing the community harvest regulations, Dr. James Fall, the statewide program  


manager for the State's Division of Subsistence, testified that it was difficult to determine  

how many people were interested in hunting caribou in Unit 13 and how many caribou  

were needed for subsistence, because the hunt there had been restricted for many years.  

Yet  the  Board  did  have  evidence  of  the  needs  for  community  use  -  the  Ahtna  

           48         See ALASKA   DEP 'T OF FISH &   GAME ,   EMERGENCY  ORDER NO . 04-08-11  

(Dec.  2,  2011),  available  at  


           49         Id.  



                      ALASKA DEP 'T OF FISH & GAME ,EMERGENCY ORDER NO . 04-07-13 (Oct. 9,  

2013),  available  at  


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----------------------- Page 18-----------------------


Subsistence Committee estimated this number at between 200 and 400 caribou.  The  

Board's decision to designate "up to 300 caribou" for the community harvest was based  


on this evidence, which contrasts with its lack of information about how many caribou  



were needed for individual subsistence hunters.                              Given the evidence before the Board,  

its estimate that the community harvest permit holders could take "up to 300 caribou"  

is not arbitrary or unreasonable.  

          C.	        The  Community  Harvest  Regulations  Do  Not  Conflict  With  Other  

                     Board Regulations.  



                     5 AAC 92.072(d) is a fish and game regulation of statewide application, 


providing that the "total bag limit for a community harvest permit will be equal to the  


sum of the individual participants' bag limits."  The Fund argues that the Board violated  

this  regulation  when  it  eliminated  the  size  restrictions  on  moose  for  holders  of  


community harvest permits in Unit 13, effectively granting them a larger bag limit.  But  


the regulations do not conflict.  A "bag limit" is defined as "the maximum number of  

                                                                                  53  Board regulations provide that  

animals of any one game species a person may take."     

community harvest permit holders and individual permit holders are both entitled to  


harvest a single caribou and a single bull moose, although the individual permit holders  


are limited by antler size and shape and the community harvest permit holders are not.54  


          51         Discussing the number of available caribou, Board Chair Ted Spraker said   

that the Board needed more data and its members "really need to kind of step back from       

this and . . . let it go for a year" before they could get a "pretty good idea of what's going   

to happen."   

          52        See 5 AAC 92.001 ("[T]he regulations in this chapter apply statewide to  

subsistence hunting.").  

          53         5 AAC 92.990(a)(3) (emphasis added).  

          54         5 AAC 85.025; 5 AAC 85.045.  

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----------------------- Page 19-----------------------

Alaska Statutes 16.05.255(f) and 16.05.258(e) both differentiate between "bag limits"  


and  "size  limitations"  when  discussing  the  areas  in  which  the  Board  may  regulate.  


Community harvest permits do not allow permit holders to take more bulls than the  


individual permit holders; the Board adoption of the community harvest permit system  

did not violate 5 AAC 92.072(d).  


          D.         The Board's Amendment To 5 AAC 92.072(d) Was Properly Noticed.  


                     The  Board  amended  5  AAC  92.072(d)  in  July  2009  to  give  itself  the  


authority to assign different season lengths to community harvest permit holders and  


                                             The Administrative Procedure Act requires the Board to  

individual permit holders. 

                                                                 56   The notice must include "an informative  

give notice before amending a regulation.     


summary of the proposed subject of agency action."                                 When the ultimate agency action  

differs  from  that  contemplated  by  the  notice,  the  Administrative  Procedure  Act  is  


satisfied  "if  the  subject  matter  remains  the  same  and  the  original  notice  assured  


reasonable notification to the public that the proposed agency action might affect its  



                     The Fund argues that the March 2009 amendment is invalid because "[t]he  


Board did not provide any notice that it would be changing a regulation that required  


identical seasons and bag limits for community hunts to a regulation that allowed for  


preferential seasons and bag limits."  But the superior court concluded that the notice  


          55         Compare  Alaska Administrative Code, Register 190, 3-511 to -512 (July     

2009) (implementing current language of 5 AAC 92.072(d)), with Alaska Administrative  

Code, Register 182, 3-291 (July 2007) (prior language of 5 AAC 92.072(d)).  

          56        AS 44.62.200(a).  

          57        AS 44.62.200(a)(3).  

          58         Chevron U.S.A. Inc. v. LeResche, 663 P.2d 923, 929 (Alaska 1983).  

                                                               -19-                                                          6992

----------------------- Page 20-----------------------

"did contain notice of proposed changes to [U]nit 13 seasons for caribou and moose, as  


well as proposed changes to community subsistence harvest areas and conditions," and  


was thus "sufficient to comply with AS 44.62.200."  We agree.  


                    According to the January 2009 notice - the one preceding the spring 2009  


meeting - the Board was considering  changes to 5 AAC 92, including changes to  


"HUNTING SEASONS AND BAG LIMITS" in Unit 13 for game including moose and  

             59   Also to be considered were changes to "LICENSES, HARVEST TICKETS,  


HARVEST REPORTS, TAGS, FEES, AND PERMITS" in units including Unit 13,  and  


"including, but not limited to . . . community subsistence harvest areas and conditions."60  


The subject matter of the amended regulation was the relative length of the hunting  


seasons available to community harvest permit holders and individual hunters.61                                               The  

January notice covered the same subject matter and was sufficient to inform the public  


that their interests might be affected.  The notice therefore satisfied the requirements of  


the Administrative Procedure Act.  

V.        CONCLUSION  

                    We AFFIRM the superior court's grant of summary judgment to the State.  


          59        There is no copy of the notice in the record on appeal.  The superior court     

cited to the notice's on-line version.  The Fund does not appear to question this reliance,  

and the State directs us to the same source.  See ALASKA   BD .   OF  GAME ,   NOTICE  OF  





   EETING (Jan. 23, 2009), available  at  


          60        Id.  

          61        See 5 AAC 92.072(d).  

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