Alaska Fish & Wildlife Conservation Fund v. State, Supreme Court No. S-14079/14099

CourtSupreme Court of Alaska (US)
Writing for the CourtCARPENETI
Decision Date07 December 2012
Docket NumberNo. 6731,Supreme Court No. S-14079/14099,Superior Court No. 4FA-09-00966 CI

and THE CHITINA DIPNETTERS ASSOCIATION, INC., Appellants and Cross-Appellees,
BOARD OF FISHERIES, and AHTNA TENE NENE, Appellees and Cross-Appellants.

Supreme Court Nos. S-14079/14099
Superior Court No. 4FA-09-00966 CI
No. 6731


Dated: December 7, 2012

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


Appeal from the Superior Court of the State of Alaska, Fourth Judicial District, Fairbanks, Michael A. MacDonald, Judge.

Appearances: Michael C. Kramer, Borgeson & Kramer, Fairbanks, for Appellants/Cross-Appellees. Lance B. Nelson, Senior Assistant Attorney General, Anchorage, and John J. Burns, Attorney General, Juneau, for Appellee/Cross-Appellant State of Alaska. John M. Sky Starkey, Anchorage, for Appellee/Cross-Appellant Ahtna Tene Nené.

Before: Carpeneti, Chief Justice, Fabe, Winfree, and Stowers, Justices. [Christen, Justice, not participating.]

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CARPENETI, Chief Justice.


In 1999, the Board of Fisheries (the Board) made a positive customary and traditional use finding in the Chitina subdistrict for the first time, thereby changing it from a "personal use" to a "subsistence" fishery. The Board reversed this decision in 2003, returning Chitina to a personal use fishery. The Alaska Fish and Wildlife Conservation Fund (AFWCF) and the Chitina Dipnetters Association, Inc., after asking the Board to reconsider its 2003 finding in both 2005 and 2008,1 brought this suit to challenge the Board's negative customary and traditional use finding for Chitina. They claimed that the regulation used by the Board to make such a finding, 5 Alaska Administrative Code (AAC) 99.010(b), was unconstitutional on its face and as applied. The superior court held that the regulation was valid and constitutional, but remanded for the Board to fully articulate the standard being used in its application of 5 AAC 99.010(b)(8). It also instructed the Board not to consider "the per capita consumption of wild food in the home community of various users" upon remand. On remand, the Board codified a definition of "subsistence way of life," allowed the parties to submit evidence, and upheld its previous classification. Because 5 AAC 99.010(b) is consistent with its authorizing statutes, is reasonable and not arbitrary, does not violate the Alaska Constitution's equal access provisions, and was constitutionally applied when the Board made its customary and traditional use finding for the Chitina fishery in 2003,

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we affirm this portion of the superior court's rulings. Because there is no indication that the Board actually relied on the per capita consumption of wild foods in the users' home communities when applying 5 AAC 99.010(b) and because that information may be relevant to the subsistence inquiry, we reverse this ruling by the superior court.


A. Facts

The Chitina fishery is located along the Copper River, about 250 miles east of Anchorage and 250 miles south of Fairbanks. The Ahtna Tene Nené (Ahtna) people have been fishing in the Copper River Basin for at least the past millennium. The Ahtna people originally utilized dipnets to catch salmon, but they later adopted fishwheels, which provided a more efficient means to catch large numbers of fish. After World War II, the construction of highways from Alaska's population centers brought many non-Natives to the area who adopted the Ahtna methods of dipnet fishing.

In the 1970s, the Board split the basin into two subdistricts separated by the Chitina-McCarthy Road Bridge: the Chitina subdistrict to the south and the Glenallen subdistrict to the north. Due to differences between dipnet and fishwheel fishing methods, Chitina was more popular with non-Natives and visitors while Glenallen was largely populated by Natives and year-round residents. As AFWCF noted:

"Dipnetters could fish more effectively [south of] the bridge, where high canyon walls surrounding a deep, fast river resulted in salmon being concentrated in back eddies. Fishwheelers . . . found productive fishing [north of] the bridge, where braiding of the river resulted in a slower current and numerous spots where a wheel could more easily be set up, tended, and maintained."

Non-locals preferred dipnets because they were easier to transport, did not require a permanent presence near the river, and suitable dipnet sites were more easily accessible.

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The Board first examined the use of Chitina salmon stocks in 1984; by examining only uses by rural residents, it found no customary and traditional subsistence uses of salmon in the Chitina subdistrict. The Chitina area was then designated for "personal use," open to all residents for dipnet fishing, while the Glenallen area was classified for "subsistence use," thereby open only to local residents who could use either fishwheels or dipnets.

After our 1985 decision in Madison v. Alaska Department of Fish and Game,2 the Board briefly reclassified all personal use fisheries as subsistence fisheries. In 1986, the Legislature rewrote the subsistence statute3 to comply with our decision in Madison and the Board of Fisheries and Board of Game jointly adopted 5 AAC 99.010(b), which listed the eight criteria used to determine if fish or game populations were being customarily and traditionally used for subsistence (commonly referred to as a "C & T determination").4 After the revised subsistence statute was enacted, the Board

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reinstated a personal use classification to the Chitina subdistrict. The Board continued to label the Chitina fishery as a personal use fishery until 1999, when it made a positive customary and traditional use determination. In 2003, the Board revisited the issue once again; it held a seven-day regulatory meeting and invited public comment and participation. After reviewing the extensive evidence presented, it changed the classification of Chitina back to personal use. The Board was asked to reconsider this

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classification in 2005 and 2008, but it declined, finding no new evidence that warranted reconsideration of its personal use classification for the Chitina fishery.

B. Proceedings

On January 13, 2009, shortly after the Board refused to reclassify the Chitina fishery at its 2008 meeting, AFWCF filed its First Amended Complaint for Declaratory Judgment and Injunctive Relief. AFWCF claimed that 5 AAC 99.010(b) was unconstitutional on its face and as applied. The State of Alaska, Alaska Board of Fisheries, and Alaska Department of Fish and Game (the State) filed their answer on February 23, 2009. AFWCF filed a motion for summary judgment on March 12, 2009. Ahtna moved to intervene and filed an answer to the original complaint on April 16, 2009. The State and Ahtna then filed cross-motions for summary judgment, and oral argument on all motions was held on June 24, 2009.

On December 31, 2009, the superior court issued a decision and order granting declaratory judgment largely for the State and Ahtna. Specifically, it found that the regulation itself was valid; that the Board's classification does not violate the uniform application and equal protection provisions of the Alaska Constitution; and that the Board properly applied 5 AAC 99.010(b), except with regard to criterion eight. With regard to criterion eight, the superior court found that the Board failed to properly articulate the objective standard being used. Accordingly, the court remanded the case and instructed the Board to define the term "subsistence way of life" as used in criterion eight of its regulation, allow the plaintiffs an opportunity to supplement the record given that new definition, and then reapply the regulation consistent with that new evidence. The court also ordered the Board not to consider per capita consumption of wild foods in users' home communities.

On remand, the Board generated a proposal to define "subsistence way of life" for purposes of customary and traditional use findings and, after public notice and

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a hearing, adopted the regulation. After receiving a report of agency action on remand in April 2010 and holding a status conference regarding the new regulations, the superior court granted final judgment on October 21, 2010. AFWCF now appeals. The State and Ahtna cross-appeal to contest the superior court's conclusion that it was improper for the Board to consider the per capita consumption of wild foods in the users' home communities in applying 5 AAC 99.010(b)(8).


Whether summary judgment was properly granted is a question of law and is reviewed de novo.5 In matters involving agency regulations, we will "substitute our judgment for that of the [B]oard when interpreting the Alaska Constitution and issues of law."6 However, if a case may be fairly decided on statutory grounds or on an alternative basis, we will not address the constitutional issues.7

When reviewing the Board's policy or the Board's application of law to a particular set of facts, decisions that are based on Board expertise, we apply a...

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