O'CALLAGHAN v. Rue, No. S-8234

• Court: Supreme Court of Alaska (US)
• Writing for the Court: MATTHEWS, Chief Justice.
• Parties: Mike O'CALLAGHAN, Appellant, and Milford D. Sweat, Appellant, v. Frank RUE, in his official capacity as Commissioner of Fish & Game, Appellee.
• Decision Date: 18 February 2000
• Docket Number: No. S-8274., No. S-8234

996 P.2d 88

Mike O'CALLAGHAN, Appellant, and
Milford D. Sweat, Appellant,
v.
Frank RUE, in his official capacity as Commissioner of Fish & Game, Appellee

Nos. S-8234, S-8274.

Supreme Court of Alaska.

February 18, 2000.

Rehearing Denied April 18, 2000.

996 P.2d 91

Mike O'Callaghan, pro se, Anchorage

William E. Caldwell, Alaska Legal Services Corporation, Fairbanks, for Appellant Milford D. Sweat.

Steven A. Daugherty, Assistant Attorney General, Bruce M. Botelho, Attorney General, Juneau, for Appellee.

Before MATTHEWS, Chief Justice, EASTAUGH, FABE, and BRYNER, Justices.

OPINION

MATTHEWS, Chief Justice.

I. INTRODUCTION

Alaska Statute 16.05.831 prohibits the waste of salmon, meaning the failure to use most of the salmon carcass.¹ This appeal concerns whether the Commissioner of Fish and Game had the authority to promulgate 5 Alaska Administrative Code (AAC) 93.320, involving salmon roe stripping, and whether the regulation is consistent with the salmon waste law. We conclude that the Commissioner had this authority and that 5 AAC 93.320 is valid.

II. FACTS AND BACKGROUND INFORMATION

The state legislature created Alaska's private non-profit (PNP) salmon hatchery program in 1976 to boost Alaska's salmon harvest.

996 P.2d 92

A comprehensive statutory scheme governs PNP hatcheries;² currently, about thirty PNP salmon hatcheries in Alaska operate under this program. Yet since the start of the program, market conditions for salmon have changed dramatically. Worldwide salmon production has tripled, and as overall numbers of salmon increased and hatchery fish comprised a greater percentage of available fish, market prices for some species of salmon have dramatically declined. Especially depressed are the markets for pink and chum salmon. The Department of Fish and Game (the Department) and salmon hatchery operators thus claim that roe stripping — the practice challenged in this appeal — is necessary to the economic survival of both individual hatcheries and the entire PNP program

Roe stripping occurs when a salmon's eggs — the roe — are removed from the fish (usually to be sold for human consumption) and the flesh is discarded. Although the practice was traditionally disfavored, increases in the number of hatchery chum and pink salmon and corresponding decreases in market value for these fish, together with increasing value of caviar, have made roe stripping more attractive.

Salmon physiology also contributes to this trend. Once a salmon nears the end of its lifespan and becomes exposed to fresh water, its flesh deteriorates in quality and can become extremely difficult, sometimes impossible, to sell. Yet because salmon at this stage convert nutrients into egg production, the roe remains of high quality even after the flesh has deteriorated. With poor market conditions, a high percentage of the value of a salmon can come from its roe.

Additionally, in recent years the harvests of chum and pink salmon have been so large that hatchery owners claim they have been unable to sell all of their salmon. Thus, faced with unmarketable salmon filled with lucrative eggs, hatchery operators find that their best economic option is to roe strip.

Before 1994, the Department of Fish and Game consistently interpreted the salmon waste law to prohibit all forms of roe stripping. In 1994, in response to the growing problem of excess, unmarketable hatchery salmon, the legislature considered — but failed to enact — a bill that would have modified the salmon waste law so as to authorize the Commissioner of Fish and Game to issue permits for roe stripping from hatchery salmon determined to have flesh that was "unfit for human consumption."³

When this legislation failed, the Department modified its interpretation of the waste law and issued six permits allowing PNP hatcheries to strip roe from surplus brood stock salmon.⁴ The Commissioner asserted that this policy was authorized by AS 16.05.831(b) because he had determined "that the salvage of roe from surplus brood stock in the hatchery raceways is consistent with maximum and wise use of the resource." No regulations were enacted to govern the issuance of these permits.

After considering several interpretations of AS 16.05.831 (the salmon waste law) — including one that would exempt all PNP hatcheries from the roe stripping restriction — the Department formed a working group to formulate regulations interpreting the salmon waste law. The group was unable to reach agreement on whether roe stripping should be authorized. Then, the Department again unsuccessfully sought to introduce legislation clarifying the salmon waste law and authorizing some forms of roe stripping. Finally, when this failed, the Department promulgated regulations 5 AAC 93.310-93.390 addressing roe stripping.⁵ One of these regulations,

996 P.2d 93

5 AAC 93.320, is the focal point of this appeal

Regulation 5 AAC 93.320 authorizes the Commissioner to issue permits allowing some salmon hatcheries to engage in roe stripping of salmon:

(a) Notwithstanding AS 16.05.831(a) and 5 AAC 93.310, a hatchery operator may remove and sell pink and chum salmon roe for cost recovery purposes, and dispose of the carcasses of the salmon, under the terms of the authorization embodied in this section.

(b) This section's authorization applies only to pink and chum salmon that

(1) originated from a hatchery;

(2) are harvested by a hatchery operator in a hatchery terminal area or hatchery special harvest area;

(3) have matured to the point that their flesh cannot be marketed without an unreasonable risk of incurring a financial loss; and

(4) cannot be put to other lawful use or be given away despite compliance with the requirements of this section.

....

(o) In this section, "unreasonable risk of incurring a financial loss" means that a hatchery permit holder reasonably determines that, for a given lot of fish, as designated by the hatchery, net profits from putting the salmon to lawful use and from selling the roe removed from the salmon, could be lower than needed to justify the diversion of hatchery personnel and resources, including overhead and administrative resources, to deal with the salmon.

The regulation requires a hatchery to document the estimated numbers of salmon returning to the hatchery, any attempts made to find lawful uses for the fish, and predicted financial losses if not allowed to roe strip.⁶ The regulation also mandates specified efforts to distribute salmon to food banks and the public, as well as record keeping.⁷ This regulation became effective on July 21, 1996,⁸ and the Commissioner issued permits pursuant to it throughout the 1996 salmon season, allowing PNP processors to strip roe from "unmarketable and otherwise unusable chum salmon."

III. PROCEEDINGS

Mike O'Callaghan, an officer of the non-profit organization EARTH, sued the Commissioner of Fish and Game for injunctive relief in November 1996. O'Callaghan, a pro se litigant, argued primarily that hatchery roe stripping violated the salmon waste law, AS 16.05.831; he wanted EARTH to receive the discarded salmon so that it could be used to feed the needy. Milford Sweat, a commercial Yukon River fisher, intervened, seeking declaratory relief invalidating the Commissioner's authorization of roe stripping. The superior court granted summary judgment in favor of the Commissioner on the validity of the regulation.

O'Callaghan and Sweat argue on appeal that the Commissioner promulgated the roe stripping regulation (5 AAC 93.320) without the required statutory authority and that the regulation violates the salmon waste law and other statutory and constitutional provisions. O'Callaghan and Sweat also argue that the Department maintains a practice and policy generally permitting roe stripping from excess brood stock salmon in violation of the salmon waste law. Finally, O'Callaghan contends that the superior court erred by refusing to allow him to amend his complaint, by relying on facts unsupported by the evidence, and by refusing to mandate the enforcement of the salmon waste law.

IV. DISCUSSION

A. The Validity of 5 AAC 93.320

1. Mootness

Regulation 5 AAC 93.320, by its terms, applied only to the 1996 and 1997

996 P.2d 94

salmon seasons.⁹ Therefore, we must determine whether this question is moot. "Ultimately the determination of whether to review a moot question is left to the discretion of the court."¹⁰ The present issue is capable of repetition and, because of the short-term nature of the regulation, might repeatedly circumvent judicial review. Furthermore, precedent indicates that the issues involved in 5 AAC 93.320 are sufficiently significant, because they are related to the "allocation of Alaska's fishery resources."¹¹ Similarly, we have noted that "the scope of the Commissioner's power is an issue of public interest."¹² We thus review this case under the public interest exception to the mootness doctrine.

2. Standard of review

This court reviews grants of summary judgment de novo.¹³ To affirm, we must find that there are no material facts at issue and that the movant is entitled to judgment as a matter of law.¹⁴

Here, we are asked to review the validity of administrative regulations. This court applies a three-part analysis to this question.

First, we must determine whether the legislature delegated to the administrative agency the authority to promulgate regulations.¹⁵ Determining the extent of an agency's authority involves the interpretation of statutory language, a function uniquely within the competence of the courts.¹⁶ Thus, this court applies its independent judgment to the question of the authority to adopt regulations.¹⁷

Once we are satisfied that the agency acted within the scope of its delegated power, we then consider whether "the regulation is consistent with and reasonably necessary to implement the statutes authorizing its adoption"¹⁸ and whether it is reasonable and not arbitrary.¹⁹ In making the consistency...