Brigman v. State, A-8044.
| Citation | 64 P.3d 152 |
| Decision Date | 14 February 2003 |
| Docket Number | No. A-8044.,A-8044. |
| Parties | Nicholas W. BRIGMAN, Appellant, v. STATE of Alaska, Appellee. |
| Court | Court of Appeals of Alaska |
Brent R. Cole and Colleen J. Moore, Marston & Cole, Anchorage, for Appellant.
John T. Baker, Assistant Attorney General, Anchorage, Joseph S. Slusser, Assistant District Attorney, and J. Michael Gray, District Attorney, Kodiak, and Bruce M. Botelho, Attorney General, Juneau, for Appellee.
Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
Nicholas W. Brigman appeals his conviction for possessing and/or transporting game that he knew, or should have known, had been taken in violation of Alaska's hunting regulations.1 This conviction arose from Brigman's assistance to a hunter who was successful in the spring 2000 drawing for brown bear hunting permits on Kodiak Island.
The hunter's permit allowed him to kill a brown bear in Permit Hunt Area 258, the "Wild Creek" area. However, the hunter tracked his bear into an adjacent hunting area, Permit Hunt Area 232, and killed the bear there. Brigman was convicted of helping transport the skin, skull, and body parts of the bear when he either knew or should have known that the hunter had violated the terms of his permit by killing the bear outside the designated permit hunt area.
The main issue raised in this appeal is Brigman's challenge to the manner in which the Department of Fish and Game established the various permit hunt areas on Kodiak Island. These permit hunt areas were all established by internal decision within the Department. Brigman contends that this is illegal for two reasons. First, he argues that no statute or regulation authorizes the Department to establish permit hunt areas. Second, Brigman argues that even if the Department has the authority to establish permit hunt areas, it can not do so by internal decision; instead, the Department must enact a regulation under Alaska's Administrative Procedure Act, AS 44.62, if it wishes to establish (or modify) the permit hunt areas.
For the reasons explained here, we conclude that the Department of Fish and Game defined the permit hunt areas pursuant to the authority granted by a now-repealed regulation, former 5 AAC 81.055(18). We further conclude that the permit hunt areas are not "rules ... or standards of general application" within the meaning of AS 44.62.640(a)(3), which means that the Administrative Procedure Act does not apply to the Department's action. Thus, pursuant to the authority granted by the former regulation, the Department could lawfully define the permit hunt areas by internal decision.
Legal background of this case
The State of Alaska is divided into twenty-six major game management units, some of which are divided into as many as six smaller sub-units (e.g., Unit 1(A), Unit 26(C)). See 5 AAC 92.450. Brigman's appeal requires us to examine the rules that govern the hunting of brown bears in Game Management Unit 8, which comprises Kodiak Island and its neighboring islands south of the Shelikof Strait.
Each year, the Department of Fish and Game establishes the rules that will govern the drawing permit hunts for game animals in Alaska.2 The Department establishes permit hunt areas for different species of game, fixes the number of permits that will be issued for each permit hunt area, sets out the procedures for applying for a permit, and announces any supplemental conditions that will govern permit hunting in each area (in addition to the conditions and procedures mandated by 5 AAC 92.050). By law, all of this information is published in an annual "permit supplement".3
For years, the Department has divided Game Management Unit 8 into some thirty "permit hunt areas" for the hunting of brown bears. These permit hunt areas are not defined by "metes and bounds" descriptions, but rather are drawn on a topographical map that is published as part of the annual permit supplement. Each of the permit hunt areas is designated by a pair of identifying numbers—one number for the fall hunt, and the other for the spring hunt. In an accompanying table, the permit hunt areas are also identified by a geographic name (e.g., "West Ugak Bay", "Sturgeon River").
The Department's map, which is reproduced here, will have a familiar look to any reader who has played such games as Diplomacy© or Risk©.
The main issue in this appeal is Brigman's legal challenge to the way the Department set the boundaries of these permit hunt areas.
Several years ago, Title 5 of the Alaska Administrative Code (5 AAC) contained a regulation that expressly authorized the Department to set the boundaries of permit hunting areas for brown bears in Game Management Unit 8.4 That regulation has since been repealed, but both the Department and the Board of Game continue to use the permit hunt areas defined by the Department.
It may be that the Department actively reconsiders the boundaries of the permit hunt areas annually, and it is just happenstance that the permit hunt areas on Kodiak Island have remained unchanged for years. Alternatively, the Department may re-affirm the existing boundaries more or less automatically each year, without active consideration of other potential boundaries. Or the Department may believe that, because the regulation that expressly authorized the Department to create permit hunt areas has now been repealed, the Department no longer has the authority to modify the hunting areas that were created under that former regulation.
Whatever the case may be, Brigman's legal challenge to the permit hunt areas is ultimately the same. The fact remains that the boundaries of the permit hunt areas have been set by internal decision within the Department. Brigman contends that this violates Alaska's Administrative Procedure Act. Specifically, he argues that even if the Department is (or was) authorized to define permit hunt areas, it could not do so by internal decision, but rather had to do so by enacting a regulation in conformity with the procedures specified in Alaska's Administrative Procedure Act, AS 44.62. That is, Brigman asserts that the Department could not establish permit hunt areas without giving the public advance notice of its proposed action and without holding a public hearing on the proposed hunting areas and their specific boundaries. See AS 44.62.180-290.
Factual background of this case
An Anchorage resident, Lorne Smette, was a successful applicant for a spring 2000 brown bear permit on Kodiak Island. Smette's permit was issued for Permit Hunt Area 258, the "Wild Creek" area. That is, Smette was only authorized to take a brown bear within Area 258.
Smette was an inexperienced hunter, and he wanted someone to assist him. Through an intermediary, he negotiated with Brigman, whose wife owns a lodge on Kodiak Island. Brigman agreed to help Smette in his hunting venture. For $4000, Brigman provided Smette with a camp, equipment, food, and transportation from the lodge to the permit hunt area. He also arranged to have Roy Lesher, an employee at the lodge, accompany Smette on his hunt.
Smette arrived at Brigman's lodge on April 24, 2000. Smette conducted a reconnaissance of the permit hunt area on April 25th, accompanied by Brigman. On April 27th, Smette went hunting, accompanied by Lesher. The hunt was unsuccessful. The next day, April 28th, Smette and Lesher traveled farther up Hidden Basin Creek. In doing so, the two men crossed the boundary of Permit Hunt Area 258 and entered the adjacent hunting area—Area 232 (the "West Ugak Bay" area).
About a mile and a half into Area 232, Smette and Lesher shot and killed a brown bear. They began to skin the bear, but it was late in the day, so they left the carcass and Brigman transported them back to the lodge. The following day, Brigman accompanied Smette and Lesher to the kill site. Brigman himself skinned the bear's head and paws. He also cut out the bear's gall bladder and saved it for himself.
After the skinning was completed, Brigman used his skiff to transport Smette, Lesher, and the bear's skin, skull, and gall bladder back to the lodge.
Brigman was charged with several offenses arising from this episode. For purposes of this appeal, the pertinent charge was that Brigman violated 5 AAC 92.140(a), a regulation that forbids a person from possessing, transporting, giving, receiving, or bartering game or game parts if the person knows or should know that the game was taken in violation of Title 16 of the Alaska Statutes or any regulation adopted under Title 16.
At trial, Brigman conceded that he possessed and transported the bear parts from Smette's hunt, but he argued that the boundaries of the permit hunt areas were so vague and inexact that he had no reasonable way of knowing that the bear was killed in the wrong area. The jury rejected Brigman's argument and convicted him of this offense.
Is the Department of Fish and Game authorized to subdivide the state's game management units into smaller permit hunt areas?
In Alaska, no one may take, possess, or transport game (or any part of a game animal) unless the taking, possession, or transportation is authorized by AS 16.05-16.40 or by a regulation adopted under those statutes.5 Smette was successful in the permit lottery for the spring 2000 brown bear hunt, but he was obliged to obey the conditions of his permit.6 Smette's hunting permit limited him to Permit Hunt Area 258. The State's core allegation against Brigman was that he possessed and transported a bear skin, skull, and gall bladder when he knew or should have known that the bear was killed in violation of the terms of Smette's hunting permit—that is, killed outside Permit Hunt Area 258.
Brigman argues that the Department of Fish and Game had no authority to limit Smette's hunting activities to Permit Hunt Area 258 because the Department ultimately has no authority to establish permit hunt areas at all. Brigman points out there is a regulation, 5...
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...court has attached, every act is presumed to have been rightly done until the contrary appears."); see also Brigman v. State , 64 P.3d 152, 158 n.7 (Alaska App. 2003) (collecting cases applying the presumption of regularity).8 See Alaska R. Admin. 21(a) ("So far as practicable, all judicial......