Bobby v. State of Alaska

• Decision Date: 14 February 1989
• Docket Number: No. A84-544 Civil.,A84-544 Civil.
• Citation: 718 F. Supp. 764
• Parties: Wasilie P. BOBBY, Sr., Individually and on Behalf of the People of Lime Village, Plaintiffs, v. STATE OF ALASKA, Defendants.
• Court: U.S. District Court — District of Alaska

718 F. Supp. 764

Wasilie P. BOBBY, Sr., Individually and on Behalf of the People of Lime Village, Plaintiffs, v. STATE OF ALASKA, Defendants.

No. A84-544 Civil.

United States District Court, D. Alaska.

February 14, 1989.

COPYRIGHT MATERIAL OMITTED

William E. Caldwell, Judith K. Bush, Alaska Legal Services Corp., Fairbanks, Alaska, for plaintiffs.

Larri Irene Spengler, Asst. Atty. Gen., State of Alaska, Juneau, Alaska, for defendants.

MEMORANDUM OF DECISION

HOLLAND, Chief Judge.

This case raises important questions of first impression for the court with respect to the validity of regulations promulgated by the Alaska Board of Game for the implementation of subsistence hunting rights which are protected by federal law.

BACKGROUND

In 1973, Congress began considering what ultimately became the Alaska National Interest Lands Conservation Act (ANILCA). ANILCA became law on December 2, 1980, as Pub.L. No. 96-487, 94 Stat. 2371, 16 U.S.C. §§ 3101-3233.¹ Title VIII of ANILCA pertains to the "subsistence way of life", making provision for subsistence management and use of "public lands" in Alaska. ANILCA §§ 801-816, 16 U.S.C. §§ 3111-3126, Title VIII. The term "public lands" is defined by ANILCA § 102(3). 16 U.S.C. § 3102(3). With certain exceptions "public lands" are lands situated in Alaska, the title to which is in the United States after December 2, 1980.

Lands owned by the State of Alaska and privately owned lands were thus not directly affected by ANILCA. However, ANILCA § 805(d), 16 U.S.C. § 3115(d), provided that the State of Alaska might opt to enact laws of general applicability consistent with ANILCA and thereby become entitled to manage fish and game on public lands as well as state-owned lands in Alaska. ANILCA § 805(d) provides:

(d) The Secretary shall not implement the federal subsistence management program if within one year from December 2, 1980, the State enacts and implements laws of general applicability which are consistent with, and which provide for the definition, preference, and participation specified in, sections 3113, 3114 and 3115 of this title, such laws, unless and until repealed, shall supersede such sections insofar as such sections govern State responsibility pursuant to this subchapter for the taking of fish and wildlife on the public lands for subsistence uses. Laws establishing a system of local advisory committees and regional advisory councils consistent with this section shall provide that the State rulemaking authority shall consider the advice and recommendations of the regional councils concerning the taking of fish and wildlife populations on public lands within their respective regions for subsistence uses. The regional councils may present recommendations, and the evidence upon which such recommendations are based, to the State rulemaking authority during the course of the administrative proceedings of such authority. The State rulemaking authority may choose not to follow any recommendation which it determines is not supported by substantial evidence presented during the course of its administrative proceedings, violates recognized principles of fish and wildlife conservation or would be detrimental to the satisfaction of rural subsistence needs. If a recommendation is not adopted by the State rulemaking authority, such authority shall set forth the factual basis and the reasons for its decision.

Anticipating the enactment of ANILCA by over two years, the Legislature of the State of Alaska adopted a subsistence priority statute in 1978. Ch. 151, SLA 1978.² Significantly, the Alaska priority for subsistence fishing and hunting thusly created was not restricted to Alaskans residing in rural areas. However, the Alaska Board of Fisheries adopted first a policy and later a regulation³ which in effect linked subsistence fishing to particular geographic communities. Effective May 30, 1982, the Board of Fisheries and the Board of Game jointly adopted a regulation which for the first time expressly associated subsistence fishing and hunting rights with rural residents through regulations adopted in 1982. 5 AAC § 99.010 (1982).⁴

By various submissions made by the State of Alaska between December 2, 1981, and April 29, 1982, the State of Alaska obtained, on May 14, 1982, a determination by the Secretary that the State's:

Subsistence Program will be in compliance with Sections 803, 804, and 805 of ANILCA as of June 2, 1982. As a result of this certification of compliance, the State retains its traditional role in the regulation of fish and wildlife resources on public lands in Alaska.

Letter, James Watt (Secretary) to Jay Hammond (Governor of Alaska), dated May 14, 1982; Appendix II at 1. By reason of the foregoing determination, Alaska's 1978 subsistence priority statute became operative as to all state lands and to virtually all federally owned lands in Alaska.

Alaska's first subsistence fishing policies were successfully challenged in Madison v. Alaska Department of Fish & Game, 696 P.2d 168 (Alaska 1985). The Alaska Supreme Court held that Alaska's priority for subsistence fishing (and therefore presumably hunting also) would not permit the implementation of the subsistence community concept. After a detailed review of the legislative history of ch. 151, SLA 1978, the Alaska Supreme Court observed:

The legislative history indicates that the legislature intended to protect subsistence use, not limit it. The words "customary and traditional" serve as a guideline to recognize historical subsistence use by individuals, both native and non-native Alaskans. In addition, subsistence use is not strictly limited to rural communities. For these reasons, the board's interpretation of "customary and traditional" as a restrictive term conflicts squarely with the legislative intent.

Madison, 696 P.2d at 176 (emphasis supplied, footnote omitted).

At this juncture, the Alaska Supreme Court makes reference to ANILCA in a footnote. In addressing an argument made by the Board of Fisheries, the Alaska Supreme Court observes that legislation pending before Congress with regard to subsistence hunting and fishing when the Alaska Legislature adopted ch. 151, SLA 1978, did not then contain the "rural Alaska resident" limitation which ultimately became a part of ANILCA as now expressed in ANILCA § 803, 16 U.S.C. § 3113. In retrospect, it is clear that Alaska's first subsistence law failed in one material respect to anticipate what Congress would require in ANILCA: ch. 151, SLA 1978, did not restrict the subsistence priority to rural Alaskans.

As a consequence of Madison, on September 23, 1985, the Secretary advised the Governor of the State of Alaska that the State's subsistence program was no longer in compliance with ANILCA. Letter, Department of the Interior to Governor William Sheffield, dated September 23, 1985; Appendix II at 2. The Secretary further advised the State that it had until June 1, 1986, to bring its subsistence program into compliance with ANILCA; that is, "requiring that the subsistence preference be limited to those rural Alaskans who customarily and traditionally make use of subsistence resources." Id.

In response to the foregoing, the Alaska Legislature, in early 1986, adopted Alaska's second subsistence law, ch. 52, SLA 1986.⁵ This act effected multiple amendments to the earlier subsistence statute. The main operative provision of chapter 52 is codified as AS 16.05.258 which, along with applicable statutory definitions, expressly limit subsistence hunting and fishing to rural areas of the state and those residing in rural areas.⁶

PLAINTIFF'S CLAIMS

Based upon the respective regulation-authorizing provisions of ch. 151, SLA 1978, and ch. 52, SLA 1986, the Board of Game has promulgated a series of regulations having application to hunting moose and caribou in Game Management Unit 19 which includes Lime Village, Alaska. These regulations form the basis for plaintiffs' complaint. They are collected in Appendix I at 14-32.

The issues raised by plaintiff Bobby and the class of Lime Village residents certified by the court have changed with time and the additions, deletions, and amendment of regulations pertaining to hunting in the vicinity of Lime Village, Alaska. The issues have most recently been framed by a second amended and supplemental complaint filed on October 16, 1986 (Docket No. 39). This complaint focused upon the closed season, individual bag limit, village harvest quota, and management area restrictions imposed on Lime Village residents by the Board of Game, as well as two collateral issues which are suggested by these regulations or the potential enforcement of them. Plaintiffs contend that the regulations are arbitrary, unreasonable, and unnecessary, and that they "fail to accord to plaintiff and his class the priority for non-wasteful subsistence uses required by Section 804 of ANILCA." Second Amended & Supplemental Complaint at 9, ¶ 15.

Plaintiffs seek a declaration that the closed season, bag limit, village harvest quota, and management area restrictions are unlawful. Plaintiffs seek an injunction from the court requiring the State to submit to the court, for approval and incorporation into a final judgment, regulations pertaining to the subsistence uses of moose and caribou by the plaintiffs.

The defendant denies the essential operative allegations of the complaint.

The court has under consideration four motions which will be discussed in the following order:

I. Defendant's motion for summary judgment, which addresses the principal issues raised by plaintiffs' second amended and supplemental complaint; namely, the regulation of the taking of moose and caribou through the imposition of hunting seasons and bag limits.

IIA. Plaintiffs' supplemental motion for partial summary judgment on a collateral issue, pertaining to the taking of antlerless moose and the impact of AS 16.05.780 thereon.

IIB. Defendant's motion to dismiss, also directed at

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