Department of Fish and Game v. Pinnell

• Decision Date: 24 November 1969
• Docket Number: No. 1202,1202
• Citation: 461 P.2d 429
• Parties: The DEPARTMENT OF FISH & GAME of the State of Alaska et al., Petitioners, v. Bill PINNELL and Morris Tolifson, individually and on behalf of all otherssimilarly situated, Respondents.
• Court: Alaska Supreme Court

Page 429

461 P.2d 429

The DEPARTMENT OF FISH & GAME of the State of Alaska et al., Petitioners, v. Bill PINNELL and Morris Tolifson, individually and on behalf

of all otherssimilarly situated, Respondents.

No. 1202.

Supreme Court of Alaska.

Nov. 24, 1969.

Charles K. Cranston, Asst. Atty. Gen., Anchorage, G. Kent Edwards, Atty. Gen., Juneau, for petitioners.

Edgar Paul Boyko, Anchorage, for respondents.

Before DIMOND, RABINOWITZ, BONEY, and CONNOR, JJ.

OPINION

RABINOWITZ, Justice.

Respondents Pinnell and Tolifson commenced a superior court action for declaratory judgment in which they sought a declaration that certain regulations of the Alaska Board of Fish and Game were invalid. The first of these regulations provided that:

No master or registered guide may take, assist in taking, participate in or assist in guiding for more than four (4) brown or grizzly bear during each regulatory year, not more than two (2) of which may be taken in Unit 9. ¹

In regard to licenses and tags required, the second regulation in question provided:

(a) Before guiding for brown and or grizzly bear, each master or registered guide must procure nontransferable bear harvest control tags.

(b) Bear harvest control tags will be issued in sets of three (3). Not more than four (4) sets of harvest control tags will be issued to a master or registered guide.

(c) These tags must be attached by the master or registered guide, one to the skull, one to the skin and one to the carcass prior to moving the hide or skull ten feet from the carcass.

(d) Those tags attached to the skull and to the skin shall remain attached until the skin is sealed and the skull examined and sealed by the Department of Fish and Game representative. ²

In conjunction with their declaratory judgment action, respondents moved for and were granted, a preliminary injunction. Under the terms of this preliminary injunction, petitioners were

enjoined from enforcing the regulations 5 AAC 87.060 and 5 AAC 87.065 against the taking of Brown of Grizzly Bear against the above-named (respondents) and all other members of their class who are acting pursuant to a valid and binding contract made and entered into prior to the effective dates of said regulations. * * *

The Department of Fish and Game then filed a petition for review and asked this court to stay the superior court's preliminary injunction pending determination of the merits of the department's petition for review. On October 28, 1969, we issued the stay sought by petitioners. We now grant review. Study has led us to the conclusion that the superior court's preliminary injunction reflects a departure so significant 'from the accepted and usual course of judicial proceedings * * * as to call for this court's power of supervision and review.' ³

The superior court's non-compliance with two controlling rules of civil procedure has caused us to characterize its issuance of the preliminary injunction as a departure from accepted and usual judicial procedures. Of paramount importance here are Rules 52(a) and 65(d), Rules of Civil Procedure. Civil Rule 52(a) establishes that:

In all actions tried upon the facts without a jury or with an advisory jury * * * the court shall find the facts specially and state separately its conclusions of law thereon and direct the entry of the appropriate judgment; and in granting or refusing interlocutory injunctions the court shall similarly set forth the findings of fact and conclusions of law which constitute the grounds of its action. (emphasis added)

Also pertinent is that portion of Civil Rule 65(d) which requires that:

Every order granting an injunction and every restraining order shall set forth the reason for its issuance; * * *.

The superior court did not make and enter any findings of fact and conclusions of law concerning the preliminary injunction which it issued. Study of the superior court's order for preliminary injunction reveals that it does not comport with the requirement of Civil Rule 65(d). We have thus concluded that the preliminary injunction was entered in contravention both of rule 65(d)'s requirement that the reasons for the issuance of the preliminary injunction be disclosed and rule 52(a)'s requirement that findings of fact and conclusions of law, which articulate 'the grounds' for the issuance of the preliminary injunction, be filed. ⁴

Civil Rule 65(d)'s requirement that the order granting an injunction set forth reasons for its issuance applies to every type of preliminary injunction. There are no exceptions. ⁵ Under the parallel provisions of the federal rules of civil procedure, judicial precedent has established that Civil Rule 65(d) should be scrupulously observed, and that a material departure from the rule's requirement may warrant vacation or reversal. ⁶ Like conclusions have been reached regarding the necessity of compliance with Rule 52(a), Federal Rules of Civil Procedure. In Mayo v. Lakeland Highlands Canning Company, Inc., ⁷ the United States Supreme Court said:

It is of the highest importance to a proper review of the action of a court in granting or refusing a preliminary injunction that there should be a fair compliance with Rule 52(a) of the Rules of Civil Procedure.

In light of the foregoing, we hold that the superior court's order granting preliminary injunction was procedurally defective. Strict compliance with the provisions of Civil Rules 52(a) and 65(d) is required, particularly in the circumstances where the trial court is enjoining the enforcement of an administrative regulation or statute. Without such compliance the court is not in a position to meaningfully exercise its...