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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Estrada v. State (11/20/2015) sp-7062

Estrada v. State (11/20/2015) sp-7062

              Notice:   This opinion is subject to correction before publication in the P                                             ACIFIC  REPORTER .    

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                               THE SUPREME COURT OF THE STATE OF ALASKA                                                 

ROCKY  L.  ESTRADA,   SR.,                                                              )  

STANLEY  D.  JOHNSON,  and                                                                                                               

                                                                                        )       Supreme Court No. S-15434  

ALBERT  M.  KOOKESH,   SR.,                                                                                                                  

                                                                                        )       Court of Appeals No. A-10893  



                                                                                        )       District Court Nos.  1AG-09-00030 CR,  


                                                                                        )       1AG-09-00031 CR, and  


                                                                                         )      1AG-09-00033 CR (Consolidated)  




STATE OF ALASKA,                                                                        )       O P I N I O N  



                                                                                        )       No.  7062 – November 20, 2015  



                           Petition for Hearing from the Court of Appeals of the  State of  


                           Alaska,  on  appeal  from  the  District  Court  of  the  State  of  


                           Alaska,  First  Judicial  District,  Angoon,  David  V.  George,  



                           Appearances:  John  M.  Starkey,  Landye  Bennett  Blumstein,  


                           LLP,  Anchorage,  for  Petitioners.                                     Lance  B.  Nelson,  Senior  


                           Assistant  Attorney  General,  Seth  M.  Beausang,  Assistant  


                           Attorney              General,   Anchorage,                          and        Craig   W.               Richards,  


                           Attorney   General,   Juneau,   for   Respondent.                                                     Robert   T.  


                           Anderson,  Seattle,  Washington,  for  Amicus  Curiae  Alaska  


                           Federation of Natives.  


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


                           Justices.   [Winfree, Justice, not participating.]  


                           BOLGER, Justice.  

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                     A statewide regulation authorizes the Alaska Department of Fish and Game  


(the Department)  to  specify how many fish may be taken annually under a subsistence  


fishing  permit.          Four  Angoon  fishermen  challenged  this  regulation  on  various  grounds  


after they were charged with taking more salmon than their permits allowed.  The district  


court  agreed  with  their  challenge  and  dismissed  the  charges.                                   The  court  of  appeals  


reversed.   We conclude that these harvest limits are regulations that must  comply  with  


the  Administrative  Procedure  Act (APA).                          Because  the  Department promulgated  these  


harvest limits  without following the  requirements  of the  APA, we  reverse  the  court of  


appeals and reinstate the district court judgments dismissing these charges.  




                     The  Kanalku  Lake  sockeye  run  has  long  been  a  source  of  subsistence  


fishing for the  residents  of Angoon.                     In the  years  2001 through 2005, the  harvest limit  


for Kanalku sockeye was 25.  In 2001 the Department first assessed the health of this run  


and  determined  that the  fish harvest was  unsustainably  high given  the  low escapement  

         1  Angoon residents informally agreed to a voluntary moratorium on fishing for the  


2002   season,   and   resumed   the   moratorium  in  2004.                                  But   the   Department,   after  


concluding that the voluntary moratorium had been ineffective, wrote in 2006 to Angoon  


community  leaders,   informing  them  that  “[t]he  annual  [harvest]   limit  for  Kanalku  


[would] . . . be reduced  from 25 to 15 sockeye salmon.”   In May 2007 the Department  


issued a news release noting  that the sockeye possession and harvest limit for Kanalku  


sockeye would remain at 15.  




                     “ ‘[E]scapement’ means the annual estimated size of the spawning salmon  


stock.”  5 Alaska Administrative Code (AAC) 39.222(f)(10) (2014).  

                                                                  -2-                                                                7062  

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                              Rocky Estrada, Scott Hunter,                                       Stanley Johnson, and                            Albert Kookesh were   

arrested   on Admiralty                           Island, along the                     shore   of   Kanalku   Bay, in July                                   2009   for taking   

more   sockeye   salmon than their subsistence                                                     fishing permits                    allowed.    Each permit had   

an annual subsistence harvest limit                                            of   15 sockeye for the Kanalku fishery, and the four                                                   

individuals    had    collectively    harvested    148.      Estrada,    Johnson,    and    Kookesh    (the  

fishermen) were charged under 5 AAC 01.015(b)(1), which                                                                              provides that “the numbers               


of fish taken for subsistence use may not exceed the limits set out in the permit.”                                                                                                 

                              The fishermen moved to dismiss the charges, arguing that 5  AAC  01.015  


was invalid.  Citing Alaska’s subsistence statute, AS 16.05.258, the fishermen contended  


that  the  Board  could  set  harvest  limits  only  through  the  adoption  of  regulations  in  


compliance  with  the  APA.4                                         Since  the  harvest  limit  had  not  been  promulgated  in  


accordance with the APA, the fishermen argued that it could not form the basis for their  




                              The district court agreed.   First, the court looked to the indicia of when an  


agency action constitutes a “regulation,” as defined in the APA.5                                                                              Noting that the harvest  


limit  “makes  subsistence  fishing  restrictions  specific,  subjects  any  contrary  use  to  


               2              Hunter   was   initially   charged   with violating                                              the   catch limit                 on his          permit,   

but this charge was later amended to fishing without a permit.                                                                           He is not a party                        to this   

petition for hearing.                       

               3              5  AAC  01.015(b)(4) provides  that “the  permit may  designate  the  species  


and number of fish to be harvested.”   See also  5  AAC  01.730(e) (providing that in the  


Southeastern   Alaska                              Area,   the               Department   may   establish   possession   limits                                                            on  


subsistence salmon fishing permits “if resources are limited relative to anticipated harvest  


levels,” and that “the [D]epartment  may not set any possession limit which jeopardizes  


the sustained yield of a stock”).  


               4              AS 44.62.010-.950.  

               5              See AS 44.62.640(a)(3).  


                                                                                             -3-                                                                                      7062

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prosecution, and affects the public’s use of the resource,” the court concluded that the                                                                        

                                                                                                                                                             6  and the  

harvest limit was a regulation.                               After looking to the Board’s authorizing statute                                                           

subsistence statute,7  the court also concluded that “the Legislature has charged the Board  


[with]  adopt[ing]  regulations  if it wishes  to  establish [catch]  limits.”                                                                Accordingly, the  


court dismissed the charges against the fishermen.  


                                                                                                                                   8   The court of appeals  

                           The State appealed, and the court of appeals reversed.                                                                               


did  not address  whether the  harvest limit was  a  “regulation”  as  defined  by  the  APA.9  


Rather, the  court of appeals  identified  the  question as  whether the  legislature  gave  the  


Board “authority to enact regulations that . . . authorize the Department to impose terms  


or  conditions  on  [fishing]  permits  that  restrict  harvest  levels.”10                                                              In  considering  this  


question, the court of appeals concluded that the Board’s interpretation of its authorizing  


statute was entitled to deference, and should therefore be upheld so long as it “appear[ed]  


to be a reasonable interpretation of the disputed law.”11                                                         In addition, the court reasoned  


that the legislature had “ample opportunity to learn” of the Board’s regulations  but had  


              6            See  AS 16.05.251(a)(3) (“The Board of Fisheries may adopt regulations it                                                                        

considers   advisable   in   accordance   with   AS   44.62   (Administrative   Procedure   Act)   for  

.   .   .   setting quotas, bag limits, harvest levels, and sex and size limitations on the taking                                                                

of fish       . . . .”).       

              7            See  AS   16.05.258.  

              8            See State v. Estrada, 315 P.3d 688, 694 (Alaska App. 2013).  


              9            Id . at 692.  


              10           Id .  

              11           Id . at 694.  


                                                                                    -4-                                                                              7062

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never   “intervened   by   amending   the   pertinent  authorizing   statutes.”                                                The   court  of  

appeals therefore held that 5 AAC 01.015 “was a valid exercise of the Board’s authority”                                                

and   that  the   fishermen were                    required   to   adhere   to   the   harvest   limit  specified   in   their  

subsistence fishing permits.                   13  

                       The fishermen filed a petition for hearing, arguing that the court of appeals  


applied  the  wrong  standard  of  review  and  misinterpreted  the  relevant  statutes.                                                          We  


granted the petition in full.  




                       We  exercise  our  independent  judgment  when  we  review  the  court  of  


appeals’ decision on a petition for hearing.14                                We also exercise our independent judgment  


to  determine  whether  agency  action  is  a  regulation  for  purposes  of  the  APA.15                                                       “We  


interpret . . . Alaska law according to reason, practicality, and common sense, taking into  


account the plain meaning and purpose of the law as well as the intent of the drafters.”16  


We apply a “sliding scale” approach to statutory interpretation:  “the plainer the language  


of the statute, the more convincing any contrary legislative history must be.”17  


IV.         DISCUSSION  

                       The fishermen argue that the harvest limits set by the Department must be  


promulgated as regulations in compliance with the APA.   Under the Board’s authorizing  


            12         Id .  

            13         Id .  

            14         State  v.  Hodari,  996  P.2d   1230,   1232  (Alaska  2000).  

            15         Kachemak  Bay   Watch,  Inc.  v.  Noah ,  935  P.2d   816,   825  (Alaska   1997).  

            16         Native   Vill.  of  Elim  v.  State,  990  P.2d   1,  5  (Alaska   1999).  

            17         Peninsula Mktg.  Ass’n  v.  State, 817  P.2d  917, 922  (Alaska  1991); accord  


State, Div.  of  Workers’ Comp. v.  Titan Enters ., 338 P.3d 316, 320 (Alaska 2014).  


                                                                         -5-                                                                   7062

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


statute,   any   “regulations” must indeed be adopted in compliance with the APA.                                                                                                                  The  

APA defines “regulation” in part as                                                 

                                every            rule,          regulation,                  order,              or       standard                of        general  

                                application   or   the   amendment,   supplement,   or   revision   of   a  

                                rule, regulation, order, or standard adopted by a state agency                                                               

                                to implement, interpret, or make specific the law enforced or                                                                            

                                administered by it, or to govern its procedure, except one that                                                                      

                                relates   only   to   the   internal   management  of   a   state   agency  


                                . . . . 


Although this  definition is  “broad,”20   “it does  not encompass  every  agency practice  or  


                       21       “Indicia  of  a  ‘regulation’  include:                                             (1)  whether  the  practice  implements,  


interprets[,] or makes specific the law enforced or administered by the state agency, and  


(2) whether the practice affects the public or  is  used  by  the agency in dealing with the  




                                In Jerrel  v.  State,  Department  of  Natural  Resources ,  we  explained  that  


“[t]he label an agency places on a policy or practice does not determine whether that rule  


falls  under the  APA; the  legislature  intended  for  the  term ‘regulation’ to  encompass  a  


variety of statements made by agencies.  Rather, we look to the character and use of the  


                18              See   AS  16.05.251(a)   (“The   Board   of   Fisheries   may   adopt  regulations   it  

considers advisable in accordance with AS 44.62 (Administrative Procedure Act) . . . .”).                                                                                                         

                19              AS 44.62.640(a)(3) (emphasis added).  


                20             Alyeska Pipeline Serv. Co. v. State, Dep’t of Envtl. Conservation , 145 P.3d  


561, 573 (Alaska 2006).  


                21             Kachemak Bay Watch, Inc. v. Noah , 935 P.2d 816, 825 (Alaska 1997).  


                22             Id .  

                                                                                                   -6-                                                                                            7062

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


policy   or   rule.”                     Therefore,   we   must   independently   determine   whether   an   annual  

subsistence fishing harvest limit constitutes a “regulation” under the APA.                                                          

                           In  Jerrel  we invalidated an agency rule requiring that markings on livestock                                                  

be   visible   from a               distance   of 20              feet   because   the   rule   was   a   regulation not adopted                                         in  

                                                     24     The agency argued that the rule was an “informal ‘policy  

compliance with the APA.                                                                                                                   

              25  elaborating on a regulation that allowed the agency to “require that . . . livestock  

rule,’ ”                                                                                                                                                   


be  tagged,  dyed,  or  otherwise  marked”26                                         and  a  statute  that  established  ownership  in  


livestock  if  the  animal  was  “branded  or  marked  so  that  the  brand  or  mark  shows  


                       27      We  noted  that  the  20-foot  rule  met  “both  core  characteristics  of  a  



                         :     it  was  used  “to  interpret,  make  specific,  and  implement  [a]  statutory  



requirement,”                   and  it  was  used  “not  as  an  internal  guideline  but  rather  as  a  tool  in  



dealing with the public.”                           Both of these “core characteristics of a regulation” are present  


in this case: setting the harvest limit at 15 fish made specific a statutory requirement, and  


the  limit  was  used  as  a  tool  in  dealing  with,  and  indeed  criminally  prosecuting,  the  


             23            999 P.2d 138, 143 (Alaska 2000) (footnotes omitted).

             24           Id . at 145.


             25           Id . at 143.


             26           Id . at 142 (quoting 11 AAC 60.070).


             27           Id . (quoting AS 03.40.020) (internal quotation marks omitted).  


             28           Id . at 143.  


             29           Id .  

             30           Id . at 143-44 (footnote omitted).  


                                                                                   -7-                                                                             7062

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

                      Similarly, in         State   v.   Tanana   Valley   Sportsmen’s   Ass’n, we                          held   that the  

Alaska   Board   of   Game   had   improperly   altered   the   criteria   it  applied   in   its   permitting  

                                                                                                                     31    In evaluating  

decisions   by   issuing the              alteration via         verbal instructions   to   its   agents.                       

AS 16.05.255 (the statute that empowers the Board of Game to adopt regulations in the  


same way AS 16.05.251 empowers the Board of Fisheries32), we noted that the Board of  



Game’s actions in “the  setting of quotas . . . must be in accordance with the [APA].”                                                            


We  held that because the APA does not allow agencies to impose requirements by oral  


instruction, “such verbal additions to regulations involving requirements of substance are  


                                                        34     The  APA  similarly  does  not  allow  agencies  to  

unauthorized  and  unenforceable.”                                                                                                           


circumvent its  requirements  for promulgating regulations  by imposing “requirements  of  


substance” through a permitting process.  


                      The State argues that Brigman v. State  is a better analogy to this case.35  



Brigman , the court of appeals considered whether the Department was required to follow  

                                                                                                36     The  court  reasoned  that,  


the  APA  in  establishing  a  brown  bear  permit  hunt  area. 

although an  area  grid  applying  to  all  individuals  wishing  to  hunt  brown  bears  in  that  


           31         See  583 P.2d 854, 855 (Alaska 1978).                

           32         Compare   AS   16.05.255   (authorizing   the                               Board   of   Game              to   make  


regulations  for specified  purposes  that “it considers  advisable  in accordance  with [the  


APA]”), with AS 16.05.251 (authorizing the Board of Fisheries to make regulations for  


specified purposes that “it considers advisable in accordance with [the APA]”).  


           33         Tanana  Valley, 583 P.2d at 858.  


           34         Id .  

           35         64 P.3d  152 (Alaska App. 2003).  


           36         Id . at 155.  


                                                                      -8-                                                               7062

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


management unit was   a   rule   “ ‘of general application,’ ”                                     the   area   did   not “govern or   


restrict    hunters’ activities              in the     same   manner as”               other rules       governing bear hunts.                   

After analyzing the relevant case law, the court ultimately concluded that the  hunt  area  



was not a “regulation” under the APA.                               



                      In Brigman , the court of appeals reasoned that the permit-hunt boundaries  


were not regulations “because they [did] not govern or restrict hunters’ activities in the  


same  manner  as  the  rules  that  .  .  .  specify  the  hunting  season,  or  restrict  the  type  of  


transportation or weapon that hunters may use, or that prohibit the killing of animals of  

                                         40   But we conclude that the harvest limit in this case “restricts  



a particular size or sex.” 

[the  fishermen’s]  activities”  in  a  way  that  is  similar  to  these  archetypal  regulations  


because the limit adds specific, concrete content to the general rule.  


                      The Brigman  court relied on Kachemak Bay Watch , Inc. v. Noah , in which  


we determined that a similar system of  districts was not a regulation in part because it  


“[did]  not  alter  the  rights  of  the  parties,  [and  did]  not  deprive  any  party  of  a  fair  


opportunity  for  public  participation.”41                           In  this  case,  however,  setting  harvest  limits  


clearly alters the rights of the parties with respect to how many fish they may harvest.  


           37         Id .  at 159  (quoting  AS 44.62.640(a)(3)).  

           38         Id .  at 159-60.  

           39         Id .  at 161.  

           40         Id . at 159-60.  


           41         Id . at 161 (quoting Kachemak Bay  Watch, Inc.  v. Noah , 935 P.2d 816, 825  


(Alaska  1997)).  


                                                                      -9-                                                               7062

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

                       In   Kachemak   Bay   Watch ,   we   also   noted   that  the   district  identification  

                                                                                                              42   and that subsequent  

process was “the              first   step in a lengthy, detailed public process,”                                         

steps  in  that  process  would  themselves  be  subject  to  the  APA.43                                                 Here,  when  the  


Department set out the harvest  limits  on the fishermen’s permits, that was the  last step  


in a process that at no point provided for the public participation that is required by the  



                       The  State  also  attempts  to  distinguish  Jerrel ,  arguing  that  the  marking  


requirement  at  issue in that case was not set out in either the regulation or the Jerrels’  


lease.       Here,  on  the  other  hand,  the  harvest  limit  was  displayed  on  the  permit  itself,  


giving notice of the limit to the fishermen.  This distinction does not alter our conclusion.  


In Jerrel , the general marking requirement  was  set out in the regulation.44                                                   The 20-foot  


visibility  requirement  added  substantive,  specific  content  to  that  general  requirement  


rather than simply enforcing it.  


                       So  too  here,  the  regulations  relating  to  subsistence  fishing  harvest  limits  


contain general requirements — that “the numbers of fish taken for subsistence use may  


not exceed the limits set out in the permit,”45  and that the Department may set limits by  


permit that do not “jeopardize[] the sustained yield of a stock.”46                                              The decision to set a  


15-fish  harvest  limit  for  Kanalku  sockeye  does  not  simply  implement  these  general  


requirements, but makes them specific and brings them to bear on the public.   However  


            42         Kachemak Bay Watch                   , 935 P.2d at 826 (emphasis added).

            43         Id .


        Jerrel v. State, Dep’t of Natural Res. , 999 P.2d 138, 142 (Alaska 2000).  


            45         5 AAC 01.015(b)(1).  


            46         5 AAC 01.730(e)(4).  


                                                                       -10-                                                                  7062

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

the   public received notice of that limit — whether by reading and signing their permits,                                                                  

                                                                                           47  — it has the “core characteristics  

or by receiving a letter from the agency as in                                  Jerrel                                           

of a regulation,”48  and as such must be promulgated in accordance with the APA.  


                        The  parties  do  not  dispute  that  the  Department  did  not  comply  with  the  


APA  when  adopting  harvest  limits.                                  The  APA   requires,  among  other  things,  the  


publication of public  notice, containing specific  information, prior to  the  adoption of a  


regulation;49  it also requires a formal opportunity for the public to comment on proposed  


regulatory action.50                Here, the 15-fish limit was first announced  after  it was adopted,  in  


a letter the Department sent to Angoon community leaders.  


                        The State argues that the manner in which the harvest limits were adopted  


does not offend the purposes of the APA, because the fishermen had notice of the limits  


and  because  the  Department informally  consulted  with Angoon community  leaders  and  


residents  before  adopting  the  limits.                            Even  were  this  true,  it  is  not  relevant  to  our  


analysis.  Because we have concluded that the harvest limits are, in fact, regulations, they  


must do more than satisfy the underlying purposes of the  APA;   they must also satisfy  


its formal requirements.   The Board should have complied with the APA in establishing  


the  15-fish harvest limit, and because it did not, the district court acted correctly when  


it dismissed these charges.51  


            47          See  Jerrel ,  99  P.2d  at 140.  

            48          Id .  at 143.  

            49          AS 44.62.190.  

            50          AS 44.62.210.  

            51          Because   we   find   that  the   harvest  limits   should   have   been   adopted   in  

accordance  with  the  APA,  we  do  not reach  the  other  questions  briefed  by  the  parties.  

                                                                         -11-                                                                    7062

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

V.        CONCLUSION  


                   We  REVERSE  the  court  of  appeals’  decision,  and  reinstate  the  district  


court’s judgment of dismissal.  

                                                            -12-                                                   7062

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