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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Alaska Trappers Association, Inc., and National Trappers Association, Inc. v. City of Valdez (5/10/2024) sp-7699
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, email
corrections@akcourts.gov.
THE SUPREME COURT OF THE STATE OF ALASKA
ALASKA TRAPPERS )
ASSOCIATION, INC. and ) Supreme Court No. S-18189
NATIONAL TRAPPERS )
ASSOCIATION, INC., ) Superior Court No. 3VA-20-00015 CI
)
Appellants, ) O P I N I O N
)
v. ) No. 7699 - May 10, 2024
)
CITY OF VALDEZ, )
)
Appellee. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Valdez, Rachel Ahrens, Judge.
Appearances: Zane D. Wilson and A. René Broker, CSG,
Inc., Fairbanks, and Gary R. Leistico, Leistico & Esch,
PLLC, St. Cloud, Minnesota, for Appellants. Jon S.
Wakeland, Robin O. Brena, and Jake W. Staser, Brena, Bell
& Walker, P.C., Anchorage, for Appellee. Kneeland Taylor,
Law Office of Kneeland Taylor P.C., Anchorage, for
Amicus Curiae Alaska Wildlife Alliance, Inc. Cheryl R.
Brooking, Assistant Attorney General, Anchorage, and Treg
R. Taylor, Attorney General, Juneau, for Amicus Curiae
State of Alaska.
Before: Winfree, Chief Justice, and Maassen, Carney,
Borghesan, and Henderson, Justices.
CARNEY, Justice.
----------------------- Page 2-----------------------
INTRODUCTION
State and national fur trappers associations challenged a city ordinance
that limited trapping in certain areas, arguing that it was prohibited by Alaska law. We
affirm the superior court's order granting summary judgment to the city. We take this
opportunity to reaffirm that whether a local ordinance conflicts with state law and is
therefore invalid depends upon whether the ordinance has been expressly or impliedly
prohibited.
FACTS AND PROCEEDINGS
A. Facts
In 2005 the City of Valdez enacted Valdez Municipal Code (VMC)
Chapter 9.38 to regulate animal trapping within its limits. The ordinance generally
allows trapping for both recreational and subsistence purposes within the Valdez city
limits, but it bars trapping in the Valdez duck flats, portions of Mineral Creek Canyon,
all areas northeast of the Richardson Highway from Airport Road to the Glacier Stream
1
Bridge, and Mineral Creek State Park, and within one-half mile of occupied
2 3 4
subdivisions or 500 feet of any road and certain trails. Violators of the ordinance are
5
subject to a minimum fine of $50 and a mandatory court appearance. The ordinance's
stated purpose is to "enact land use regulations" to protect "all persons from hazardous
devices and to protect domesticated animals and pets from damage and destruction
6
which may result from uncontrolled trapping activities." The ordinance authorizes the
1 VMC 09.38.030(B), (C), (D).
2 VMC 09.38.030(A).
3 VMC 09.38.030(B). The 500 feet restriction does not apply to "bridges
and culverts outside the downtown area and past the duck flats."
4 VMC 09.38.030(C).
5 VMC 09.38.050.
6 VMC 09.38.010.
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chief of police to allow trapping within restricted areas as deemed necessary to protect
7
public health and safety. Although the suit was originally brought regarding the 2005
version of the ordinance, the substantive issues the superior court ruled upon at
summary judgment related to the 2020 version of the ordinance. We therefore consider
that version of the ordinance.
B. Proceedings
The Alaska Trappers Association and the National Trappers Association
(Trappers) filed a complaint challenging the ordinance in February 2020. They alleged
that Valdez's trapping ordinance is "invalid and unconstitutional." They argued that
VMC 9.38 is preempted by state law, that Valdez violates AS 16.05.790 by "interfering
with trapping activity conducted in compliance with applicable state and federal law,"
and that VMC 9.38 was "not promulgated in compliance with" article VIII, sections 1,
2, 3, 4, 6, and 7 of the Alaska Constitution. The Trappers argued that AS 16.20.010
"specifically asserted [the State's] jurisdiction over all fish and game in the State except
in those areas where it has assented to federal control," and that Valdez's trapping
ordinance operated as an improper veto of a state determination. They asked the
superior court to declare that the Alaska Constitution and statutes impliedly preempt
municipal regulation of trapping and that the ordinance violates AS 16.05.790 and
article VIII of the Alaska Constitution.
Valdez answered, asserting that it had "constitutional authority" and a
"statutory right" to promulgate VMC 9.38. Valdez argued that its power to regulate
land use under article X, section 11 of the Alaska Constitution and AS 29.35.260(c)
7 VMC 09.38.040 (providing examples of exceptions, including for
government employees required to trap animals for authorized purposes, scientists
identifying and studying wildlife for scientific purposes, and persons with specific
animal nuisance problems).
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authorized it, as a home rule municipality, to enact the trapping limitations on municipal
land.
The parties filed cross-motions for summary judgment. The Trappers
argued that the legislature had not delegated any authority to Valdez to regulate trapping
and had "instead vested its authority solely with the State of Alaska Board of Game and
the Commissioner of Fish and Game." They argued further that "[e]ven if [Valdez] had
some authority to regulate trapping," it could not "adopt ordinances that override State
law and regulations."
Valdez argued that its ordinance was presumed to be "a valid and
constitutional exercise of municipal authority." It asserted that its authority to regulate
land use and public safety had not been restricted or prohibited to prevent it from
limiting trapping for those purposes. Valdez also asserted that it had authority to enact
local ordinances that were in conflict with state law as long as its exercise of authority
had not been either expressly or impliedly prohibited by state law.
The superior court held oral argument in December 2020. The Trappers
argued that VMC 9.38 is impliedly preempted by state law and regulations because it
is substantially irreconcilable with AS 16.05.790 and 5 Alaska Administrative Code
8
(AAC) 84.260 and .270, citing the test laid out in Jefferson v. State . They also argued
that authority over fish and game belongs to the Board, comparing it to our discussion
of the Department of Natural Resources' (DNR) broad power to regulate mining in
9
Jacko v. State and suggesting the ordinance was an improper veto of a state
determination that the area should be open to trapping. Finally, they argued that even
if Valdez had authority to regulate trapping, VMC 9.38 should still be invalidated
8 527 P.2d 37, 43 (Alaska 1974).
9 353 P.3d 337, 343-44 (Alaska 2015).
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because Valdez failed to comply with certain constitutional principles and should have
brought a proposal to the Board rather than passing the ordinance itself.
Valdez argued that there was no evidence that the ordinance actually
impeded trapping in Valdez or that the Trappers had made any attempt to provide public
input when the ordinance was passed. It argued that it could not ask the Board to
implement a regulation addressing its safety concerns because the Board does not have
authority to address public safety.10 Valdez emphasized that the Board's mandate is to
"conserve and promote the use of game resources," but the city has the authority and
responsibility to protect the health and public safety of its citizens, as it had done by
passing the ordinance. Finally, Valdez cited a booklet prepared by the Alaska
Department of Fish and Game (ADFG) summarizing state trapping regulations.11 It
pointed out that in this booklet ADFG specifically advised trappers to be aware of local
ordinances and therefore argued that the State contemplated that the ordinance could
coexist with trapping.12
10 Valdez asserted that the Board failed to seriously consider two recent
proposals from local citizens' advisory boards to close certain areas to trapping. The
first was a 2019 Skagway ordinance to create a buffer around homes and certain roads
that the Board debated for three minutes before unanimously rejecting. Audio tape:
Alaska Board of Game, Southeast Region Meeting, at 10:50:00 AM - 10:53:36 AM
(Jan. 14, 2019), https://www.adfg.alaska.gov/static/regulations/regprocess/gameboard/
swf/2018-2019/20190111_janse/index.html?mediaBasePath=/Meeting%2001-14-19%
20BOG%20%28Jan-18-19%209-58-54%20AM%29#. The second was a 2020
proposal to create a one-mile buffer around homes and cabins in the Interior/Eastern
Arctic region that the Board unanimously rejected after a five-minute discussion. Audio
tape: Alaska Board of Game, Interior and Eastern Arctic Region Meeting, at
4:03:03 PM - 4:08:40 PM (March 9, 2020), https://www.adfg.alaska.gov/static/
regulations/regprocess/gameboard/swf/2019-2020/bog_iea_2020/index.html#.
11 See STATE OF ALASKA, DEPARTMENT OF FISH AND GAME, 2020-2021
Alaska Trapping Regulations, No. 61.
12 See id. at 6; see also 5 AAC 84.260 ("It is lawful to trap a furbearer only
in a game management unit or a portion of a unit open to trapping in accordance with
the open season and bag limit prescribed in 5 AAC 84.270.").
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The court granted summary judgment to Valdez and denied the Trappers'
motion. It concluded that the legislature's delegation of authority to the Board was
limited and thus did not grant the Board exclusive control of trapping. Turning to the
Trappers' constitutional argument, the court determined that article VIII stated only a
directive that the legislature act in the area of natural resources but did not preclude the
legislature from delegating its authority or prevent municipalities from acting in that
area. The court noted that the presumption of constitutionality afforded to municipal
ordinances further supported its conclusion. Finally, the court determined that the
ordinance did not directly contradict state regulations because the regulations
themselves amounted to a prohibition on trapping outside specific areas rather than "an
affirmative opening" of all other land in Alaska to trapping.
The Trappers moved for reconsideration. They asserted that the superior
court failed to address their argument that the ordinance was invalid because Valdez
did not apply the sustained yield principle required by article VIII, section 4 of the
Alaska Constitution. At the court's invitation,13 Valdez responded that municipalities
have no authority to impede a statewide policy of sustained yield and are not required
to make decisions based on the sustained yield principle themselves. Valdez argued
further that it was merely enacting a public safety and land use ordinance, not managing
the taking of game, so it was not required to consider sustained yield when it enacted
VMC 9.38. The superior court denied the motion to reconsider.
The State moved to intervene just over a month after the court granted
summary judgment. The motion was denied as untimely and because it would prejudice
Valdez. The court noted that the State had not explained why it waited more than a
year after the complaint was filed to seek intervention or pointed to any changed
circumstance that would explain its present need to intervene . The court rejected the
13 See Alaska R. Civ. P. 77(k)(3) ("No response shall be made to a motion
for reconsideration unless requested by the court . . . .").
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State's argument that the court's decision would impair the State's interest. The court
observed that even if the State has a general interest in cases regarding the enforcement
of state laws, it had already held that Valdez's ordinance did not conflict with state laws
or regulations, thus resolving whether it impaired the State's interest in wildlife
management. The court noted that the State could assert its interest by filing its own
suit against Valdez to challenge the ordinance or seeking amicus curiae status.14 The
court also noted that allowing the State to intervene would prejudice Valdez by
subjecting it to the costs and delay of a repetitive round of briefing and arguments on
the same issues. The State filed a motion to reconsider, which the court denied.
The Trappers appealed. The State filed an amicus curiae brief in support
of the Trappers' position, and the Alaska Wildlife Alliance filed an amicus curiae brief
in support of Valdez.
STANDARD OF REVIEW
Municipal ordinances enjoy a presumption of constitutionality and we
"construe enactments to avoid a finding of unconstitutionality to the extent possible."15
We review questions of law, constitutional interpretation, and statutory interpretation
de novo, applying our independent judgment and adopting "the rule of law that is most
persuasive in light of precedent, reason, and policy ."16
14 See Mat-Su Reg'l Med. Ctr., LLC v. Burkhead , 225 P.3d 1097, 1106
(Alaska 2010) (concluding if potential intervenor raises no new issues, "the most
effective and expeditious way to participate is by a brief of amicus curiae and not by
intervention" (quoting State v. Weidner, 684 P.2d 103, 114 (Alaska 1984))).
15 Fraternal Ord. of Eagles v. City & Borough of Juneau , 254 P.3d 348, 352
(Alaska 2011) (quoting Treacy v. Mun. of Anchorage , 91 P.3d 252, 260 (Alaska 2004)).
16 City of Valdez v. State, 372 P.3d 240, 246 (Alaska 2016) (quoting Heller
v. State, Dep't of Revenue, 314 P.3d 69, 73 (Alaska 2013)).
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----------------------- Page 8-----------------------
DISCUSSION
The Trappers argue that because the Alaska Constitution declares the
legislature shall "provide for natural resource management," the State enjoys "pervasive
state authority" over natural resources, and as a result, municipal ordinances that affect
natural resources are "directly at odds" with the constitutional assignment to the
legislature.17 Valdez responds that a municipal ordinance is prohibited by state law
only when it "seriously impedes implementation of [a] statewide legislative policy"18
and is "so substantially irreconcilable that one cannot be given its substantive effect if
the other is to be accorded the weight of law."19 The Trappers assert that whether there
is pervasive state authority over a subject matter is a "separate" preemption test that
"applies when a municipality acts in a field where Alaska's constitution grants the State
'pervasive control.' "
We conclude that VMC 9.38 is not prohibited by the Alaska Constitution
or the legislature's delegation of authority over fish and game to the Board, and we
affirm the superior court's grant of summary judgment to Valdez. Before turning to the
parties' arguments, we review the constitution's assignment of authority to the State
and to municipalities.
A. Legal Background.
1. A home rule municipality's broad powers may be limited by
either express or implied prohibition.
Article X, section 11 of the Alaska Constitution authorizes home rule
municipalities to "exercise all legislative powers not prohibited by law or by charter."
The legislature "must so state" if it wishes to exert exclusive control over a policy
17 See Alaska Const. art. VIII, § 2 ("The legislature shall provide for the
utilization, development, and conservation of all natural resources belonging to the
State, including land and waters, for the maximum benefit of its people.").
18 Johnson v. City of Fairbanks , 583 P.2d 181, 187 (Alaska 1978).
19 Jefferson v. State , 527 P.2d 37, 43 (Alaska 1974).
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field.20 As a consequence of this strong preference for local control, a "municipal
ordinance is not necessarily invalid in Alaska because it is inconsistent or in conflict
with a state statute. The question rests on whether the exercise of authority has been
prohibited to municipalities."21
We articulated this test for resolving conflicts between state and local law
in Jefferson v. State .22 There we announced that "[t]he test we derive from Alaska's
constitutional provisions is one of prohibition, rather than [a] traditional test[] such as
statewide versus local concern,"23 and we did not rely on the "local activity rule" we
had applied in earlier cases to resolve conflicts between state and local law.24 We made
clear that prohibition "must be either by express terms or by implication such as where
the statute and ordinance are so substantially irreconcilable that one cannot be given its
substantive effect if the other is to be accorded the weight of law."25
We also reaffirmed that our decision remained "in accord with [our]
opinions relating to cases of conflict between local ordinances and state enactments ."26
Rather than disavowing earlier cases in which we had articulated our approach to such
20 Id. at 43 n.33 (citing Rubey v. City of Fairbanks , 456 P.2d 470 (Alaska
1969)).
21 Id . at 43 (emphasis added); see also Simpson v. Mun. of Anchorage, 635
P.2d 1197, 1199 (Alaska 1981) (noting "[u]nder well-established Alaska law, mere
inconsistency between an ordinance of a home rule city and a state statute will not
ordinarily suffice to render the ordinance invalid"); Fraternal Ord. of Eagles v. City &
Borough of Juneau , 254 P.3d 348, 359 (Alaska 2011) (holding municipal ban on indoor
smoking did not violate state law and was permissible because city had legitimate
purpose of protecting public health and safety).
22 Jefferson , 527 P.2d at 43.
23 Id.
24 Compare id., with Chugach Elec. Ass'n v. City of Anchorage , 476 P.2d
115, 122-23 (Alaska 1970) (applying local activity rule).
25 Jefferson , 527 P.2d at 43.
26 Id. at 44.
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conflicts differently, we clarified that these earlier opinions were consistent with our
newly announced rule of prohibition, even if we had described our analysis
differently.27
2. The pervasive state authority test is a form of implied
prohibition.
In Macauley v. Hildebrand we employed the local activity rule to resolve
a conflict between Juneau's municipal school board, which relied on a state statute, and
the municipality, which relied on its home rule charter.28 We ruled that the state statute
prevailed, noting that Chugach had earlier established that "the scope of home rule
power to act in conflict with state legislation is not without limit."29 We then held that
public education was an area of "pervasive state authority" because the constitutional
language in article VII, section 1, which gave the State control over public education,
was "mandatory, not permissive."30 We observed that the language of article VII,
section 1 "not only requires that the legislature 'establish' a state school system [] but
also gives to that body the continuing obligation to 'maintain' the system"; and "the
provision is unqualified [such that] no other unit of government shares responsibility or
authority."31
While Jefferson held the local activity rule did not apply, we discussed the
Macauley ruling in light of that holding and followed the new prohibition test we had
just announced :
27 Id.
28 491 P.2d 120, 121 (Alaska 1971).
29 Id. at 121 (citing Chugach, 476 P.2d at 117).
30 Id. at 122; see Alaska Const. art. VII, § 1 ("The legislature shall by general
law establish and maintain a system of public schools open to all children of the
State[.]").
31 Macauley , 491 P.2d at 122.
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Although the statutory prohibition in Macauley was direct,
this court offered another reason for striking down the
questioned ordinance. The statute involved in Macauley was
an express delegation by the state legislature to municipal
corporations of a constitutionally mandated legislative
power. We reasoned that the language of the state
constitution mandating maintenance of a school system by
the state vested the legislature with pervasive control over
public education . Thus, home rule municipalities were
precluded from exercising power over education unless, and
to the extent, delegated by the state legislature; and the local
ordinance was therefore overridden by the statute.[32]
Jefferson 's discussion of Macauley suggests that both express and implied
state prohibitions of the local measure were at play in Macauley .33 That is, although
there was a "direct" statutory prohibition - in other words, an express prohibition -
another reason for striking down the ordinance was implied by the constitutional
mandate that the legislature retain pervasive control over public education.34
The only other case to discuss pervasive state authority when considering
a conflict between state and local law followed a similar line of reasoning and also
concerned public education. In Municipality of Anchorage v. Repasky we considered
whether the Anchorage mayor's line item veto of items in the school district budget was
prohibited by the constitutional grant of "pervasive state authority in the field of
education."35 We noted that "it is important to the outcome of th[is] case [] . . . that
32 Jefferson , 527 P.2d at 44 (emphasis added); see also Mun. of Anchorage
v. Repasky, 34 P.3d 303, 322 (Alaska 2001) (Bryner, J., dissenting) (interpreting
Jefferson and noting court "did not stop its analysis" after finding express prohibition
but rather "proceeded to examine its newly adopted standard in light of this court's
earlier case law").
33 See Jefferson, 527 P.2d at 44.
34 See id. (analyzing Macauley , 491 P.2d at 121-22).
35 34 P.3d 302, 306-07 (Alaska 2001) (quoting Macauley , 491 P.2d at 122).
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Anchorage is a home rule municipality."36 We concluded that the city charter granted
the mayor veto power over the school district budget.37
We next considered whether that power was expressly or impliedly
prohibited by Alaska law.38 We noted that none of the parties had argued that the mayor
was expressly prohibited from having veto power but nonetheless concluded that
"Alaska law does not expressly prohibit the municipality from conferring [the veto]
power on the mayor."39 We analyzed whether there were express or implied
prohibitions, focusing on whether "state law impliedly prohibits [the mayor's]
power."40 We then looked at whether there was a prohibition "by implication," that is
whether the mayor's veto power was "substantially irreconcilable" with the state
education scheme reflected in Alaska law.41 We acknowledged that because public
education is "a field subject to 'pervasive' state control[,] we ha[d] precluded even
home rule municipalities from acting unless they were exercising power delegated by
the legislature."42
We concluded that the legislature had delegated authority to the
municipality by "expressly [giving] municipalities the power to approve or reduce the
total amounts of the proposed budget."43 Because we "construe sections of a statutory
scheme to be consistent with one another,"44 we applied the different statutes - on
36 Id. at 306.
37 Id. at 310.
38 Id. at 305.
39 Id. at 311.
40 Id. at 310-11.
41 Repasky, 34 P.3d at 311.
42 Id .
43 Id. at 314.
44 Id . at 315.
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education and home rule powers - as consistently as possible to "adhere to a policy
choice the Alaska legislature ha[d] already made."45 We concluded that "[t]he mayoral
veto is not substantially irreconcilable with" the statutory scheme.46 It was therefore
not impliedly prohibited by state law.
B. VMC 9.38 Is Not Impliedly Prohibited.
With this background in mind, we turn to VMC 9.38. The Trappers do
not argue that VMC 9.38 is expressly prohibited, and we agree that state law does not
expressly prohibit Valdez from enacting its ordinance.
We next consider whether the ordinance is impliedly prohibited47 - first
determining whether the ordinance implicates an area of "pervasive state authority" like
public education.48 If it does not, the ordinance is impliedly prohibited if it and state
law are "so substantially irreconcilable that one cannot be given its substantive effect if
the other is to be accorded the weight of law."49
We have concluded that there is pervasive state authority when the
constitutional language granting the authority is "mandatory, not permissive"; imposes
a "continuing obligation" upon the State; and is "unqualified [such that] no other unit
of government shares responsibility or authority."50 Public education is the only field
over which we have determined that the legislature granted "pervasive state
authority."51 We based our conclusion on article VII, section 1 of the Alaska
45 Id.
46 Id. at 314.
47 See Jefferson v. State , 527 P.2d 37, 43 (Alaska 1974).
48 Repasky, 34 P.3d at 311.
49 Id.
50 See Macauley v. Hildebrand , 491 P.2d 120, 122 (Alaska 1971).
51 Id. We acknowledged the State 's "compelling argument" that natural
resource management is an area of "pervasive state authority" in Jacko v. State , 353
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Constitution, which provides: "The legislature shall by general law establish and
maintain a system of public schools open to all children of the State." This language
not only mandates the creation of a public school system, it also requires the State to
"maintain" it.52
Precisely which field is at issue here is disputed: the Trappers argue that
the ordinance implicates "natural resource management," while Valdez asserts the
ordinance is within its authority to regulate public safety, protection of property, and
land use. The Trappers cite the constitutional language in article VIII, section 2 that
declares that the legislature "shall provide for the utilization, development, and
conservation of all natural resources belonging to the State." Valdez relies on article X,
section 11, which states that home rule municipalities "may exercise all legislative
powers not prohibited by law or by charter," and AS 29.35.260(c), which declares home
rule municipalities "shall provide for planning, platting, and land use regulation."
We recognize that this is a close case, requiring that we balance two
compelling constitutional grounds - home rule municipalities' broad powers and state
authority over natural resource management. The stated purpose of VMC 9.38 is to
"enact land use regulations" to protect "all persons from hazardous devices and to
protect domesticated animals and pets from damage and destruction, which may result
from uncontrolled trapping activities."53 Although the ordinance bars trapping in some
areas within the city,54 it does not seek to limit the quantity or type of animals trapped,
who is permitted to trap, or the trapping methods used outside the restricted areas. The
ordinance's impact on wildlife or natural resource management is incidental, arising
P.3d 337, 346 n.60 (Alaska 2015). But we did not decide the issue in Jacko and we do
not decide it here.
52 See Macauley, 491 P.2d at 122.
53 VMC 09.38.010.
54 See VMC 09.38.030.
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from its primary focus on protecting individuals and pets from potentially hazardous
devices used in trapping. To determine that any ordinance that affects wildlife or
natural resources is impliedly prohibited by article VIII, section 2 would severely
undermine the authority granted to home rule municipalities to "exercise all legislative
powers not prohibited by law or charter."55 Because VMC 9.38 was explicitly enacted
pursuant to two powers granted to home rule municipalities - public safety and land
use - not to exercise control over natural resource management, we conclude that
pervasive state authority does not prohibit the ordinance.
Whether VMC 9.38 is otherwise impliedly prohibited depends upon
whether it is substantially irreconcilable with state law.56 Valdez, as a home rule
municipality, is authorized to regulate land use and public safety.57 It asserts that it
enacted the ordinance to regulate the use of particular parcels of municipal land to
protect public safety. The legislature, on the other hand, granted the Board authority
over certain natural resources, that is, game.58 Valdez's exercise of its authority over
public safety then does not intrude into the Board's authority.
The Trappers argue that wildlife resource management is within the
exclusive jurisdiction of the State. They argue that the legislature's grant of authority
to the Board is similarly broad as its grant to DNR, and as a result, home rule
municipalities are precluded from restricting trapping . The legislature delegated to
55 Alaska Const. art. X, § 11.
56 See Repasky, 34 P.3d at 311 (relying on Jefferson v. State , 527 P.2d 37,
43 (Alaska 1974)).
57 See Alaska Const. art. X, § 11 ("A home rule borough or city may exercise
all legislative powers not prohibited by law or by charter."); AS 29.35.260(c) ("A home
rule city outside a borough shall provide for planning, platting, and land use regulation
. . . .").
58 See AS 16.05.255(j) (authorizing the Board of Game "to regulate
regarding the conservation, development, or utilization of game . . .").
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DNR "charge of all matters affecting exploration, development, and mining of the
mineral resources of the state."59 In Jacko v. State we interpreted the statutory language
to indicate the legislature's intent to make DNR the "sole gatekeeper" of mining
projects in Alaska.60 We held that "the general provision of authority to home rule
boroughs to regulate land use does not override the specific delegation of authority to
DNR to regulate resource extraction," and we struck down the local initiative at issue
as impliedly prohibited by state law because it would have allowed the borough to
prohibit mining projects otherwise authorized by DNR.61
But the legislature 's grant of authority to the Board is not as expansive as
its grant to DNR to be the "sole gatekeeper" of mining.62 Instead, as Valdez argues, the
Board was given nonexclusive, discretionary authority to enact regulations it considers
"advisable" for thirteen enumerated purposes.63 The Board was created "[f]or purposes
of the conservation and development of the game resources of the state,"64 and the
legislature granted it authority to regulate "regarding the conservation, development, or
utilization of game."65 Nothing in the statutory language suggests that other
government entities are prohibited from enacting ordinances that affect trapping.66 The
59 AS 27.05.010(a).
60 353 P.3d 337, 344 (Alaska 2015).
61 Id. at 346.
62 See id.
63 AS 16.05.255(a) (permitting Board of Game to adopt regulations relating
to management of game, including establishing open and closed seasons, establishing
means and methods, and setting quotas and limitations on taking of game).
64 AS 16.05.221(b).
65 AS 16.05.255(j).
66 See AS 16.05.221(b); AS 16.05.255(j).
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discretionary authority delegated to the Board is simply not comparable to the
legislature's explicit grant putting DNR in "charge of all matters" in its field.67
Valdez's ordinance limiting trapping in certain places for public safety is
not "substantially irreconcilable" with the Board's authority to adopt "advisable"
hunting and trapping regulations for the purposes of conservation and development.68
The ordinance does not directly manage the taking of furbearers. It does not create open
and closed seasons. It does not limit the number, size, or sex of animals taken. It may
have an incidental effect on the number of furbearers taken in the same way prohibiting
the discharge of a firearm within city limits has an incidental effect on hunting. But
that does not equate to regulating the "utilization, development, and conservation"69 of
wildlife in a way that interferes with state authority to do so. Although the line between
safety regulation and natural resource management may not be entirely clear, the
Trappers failed to make a showing that the ordinance has such a substantial effect on
either the wildlife resource itself or Alaskans' use of that resource that is tantamount to
wildlife resource regulation.
Valdez enacted VMC 9.38 pursuant to its authority to regulate land use
and public safety. That the ordinance closes municipal areas to trapping does not make
it substantially irreconcilable with the State's authority to open other areas to trapping.
VMC 9.38 is not impliedly prohibited by state law.70
67 See AS 27.05.010(a).
68 See AS 16.05.255(a), (j).
69 Alaska Const. art. VIII, § 2.
70 The Trappers also argue that the ordinance is invalid because Valdez did
not consider the sustained yield principle required by article VIII, section 4 of the
Alaska Constitution. Because we hold VMC 9.38 is a public safety and land use
ordinance that was not enacted to assert local control of natural resource management,
we need not address this issue.
-17- 7699
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CONCLUSION
We AFFIRM the superior court's grant of summary judgment.
-18- 7699
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