McDowell v. State, No. S-2732

CourtSupreme Court of Alaska (US)
Writing for the CourtBefore MATTHEWS; MATTHEWS; RABINOWITZ; COMPTON; MOORE; RABINOWITZ
Citation785 P.2d 1
PartiesSam E. McDOWELL, Dale E. Bondurant, Ronald Mahle and Harold Eastwood, Appellants, v. STATE of Alaska, Alaska Department of Fish and Game, Alaska Board of Fisheries, Alaska Board of Game and Don W. Collinsworth, Commissioner of Fish and Game, Appellees, The Alaska Federation of Natives, Protectors of the Land d/b/a Numan Kitlutsisti, Tony Vaska and Walter Charley, on behalf of himself and all other persons similarly situated, Intervenors/Appellees.
Docket NumberNo. S-2732
Decision Date22 December 1989

Page 1

785 P.2d 1
Sam E. McDOWELL, Dale E. Bondurant, Ronald Mahle and Harold
Eastwood, Appellants,
v.
STATE of Alaska, Alaska Department of Fish and Game, Alaska
Board of Fisheries, Alaska Board of Game and Don
W. Collinsworth, Commissioner of Fish
and Game, Appellees,
The Alaska Federation of Natives, Protectors of the Land
d/b/a Numan Kitlutsisti, Tony Vaska and Walter
Charley, on behalf of himself and all
other persons similarly
situated,
Intervenors/Appellees.
No. S-2732.
Supreme Court of Alaska.
Dec. 22, 1989.

Cheri C. Jacobus, Ross, Gingras, Bailey & Miner, P.C., Anchorage, for appellants.

Larri Irene Spengler, Asst. Atty. Gen., Grace Berg Schaible, Atty. Gen., Juneau, for appellees.

Donald Craig Mitchell, Anchorage, for intervenors/appellees.

Before MATTHEWS, C.J., and RABINOWITZ, BURKE, COMPTON and MOORE, JJ.

OPINION

MATTHEWS, Chief Justice.

INTRODUCTION

This case challenges chapter 52 SLA 1986 which grants a preference to rural residents to take fish and game for subsistence purposes. The only requirement to be met by a subsistence fisherman or hunter is residency in a rural area of the state.

The rural preference is challenged under several provisions of the Alaska Constitution: the common use clause, article VIII, section 3; the no exclusive right of fishery clause, article VIII, section 15; the uniform application clause, article VIII, section 17; the equal rights clause, article I, section 1; and the due process clause, article I, section 7. In addition, violation of the equal protection and due process clauses of the United States Constitution is claimed. For the reasons that follow, we hold that the rural preference violates article VIII, sections 3, 15 and 17 of the Alaska Constitution.

FACTUAL AND PROCEDURAL SETTING

The 1986 act 1 defines subsistence fishing and hunting as activities which can be undertaken only "by a resident domiciled in a rural area of the state...." Subsistence

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uses are also defined in terms of residency in rural areas:

"Subsistence uses" means the noncommercial, customary and traditional uses of wild, renewable resources by a resident domiciled in a rural area of the state for direct personal or family consumption as food, shelter, fuel, clothing, tools, or transportation, for the making and selling of handicraft articles out of non-edible by-products of fish and wildlife resources taken for personal or family consumption, and for the customary trade, barter, or sharing for personal or family consumption.

AS 16.05.940(30). A "rural area" is defined as "a community or area of the state in which the noncommercial, customary, and traditional use of fish or game for personal or family consumption is a principal characteristic of the economy of the community or area." AS 16.05.940(25).

Appellants are Alaska residents who have engaged in subsistence hunting and fishing in the past and wish to continue to do so. Under the 1986 act, they are disqualified as subsistence users because they reside in areas classified as non-rural by the joint Boards of Fisheries and Game. Appellants McDowell and Mahle reside in Anchorage, Bondurant resides in Cooper Landing, and Eastwood resides in the community of McKinley Park.

The 1986 act requires the Board of Fisheries and the Board of Game to decide what portion of each fish stock and game population can be harvested consistent with the principle of sustained yield. Next the Boards must determine how much of the harvestable portion is needed to satisfy subsistence needs. If the harvestable portion of any stock or population is not sufficient to accommodate all consumptive uses--sport, personal use, and commercial--then subsistence uses

shall be accorded a preference over other consumptive uses, and the regulations shall provide a reasonable opportunity to satisfy the subsistence uses. If the harvestable portion is sufficient to accommodate the subsistence uses of the stock or population, then the Boards may provide for other consumptive uses of the remainder of the harvestable portion.

AS 16.05.258(c). If the harvestable portion of a stock or population is insufficient to satisfy all subsistence needs, all non-subsistence uses are barred, and the Boards are required to distinguish among subsistence users by applying three criteria: "(1) customary and direct dependence on the fish stock or game population as the mainstay of livelihood; (2) local residency; and (3) availability of alternative resources." Id.

This case was brought in 1983 as a challenge to the 1978 subsistence statute, chapter 151, section 4 SLA 1978. The 1978 statute established that subsistence hunting and fishing had priority over other uses of fish and game stocks. Like the 1986 statute, it provided for two tiers of subsistence users. In the first tier were those who could take fish or game for subsistence purposes when populations were adequate to satisfy all subsistence needs. The second tier was limited to those who could take fish and game for subsistence purposes when populations were inadequate to supply all subsistence needs. The 1978 statute distinguished the second tier of subsistence users from the first tier on the basis of the same three factors utilized in the 1986 statute, namely, customary and direct dependence, local residency, and availability of alternative resources. Id. However, unlike the 1986 statute, the 1978 statute did not impose a rural residency requirement as a condition to becoming a first-tier subsistence user.

The appellants' initial complaint challenged the second-tier subsistence priority of the 1978 statute. The complaint was amended several times to expand on the original theory and add challenges to various regulations. All parties submitted motions for summary judgment. The superior court granted some of these motions and deferred others on October 24, 1984. Before the deferred motions could be ruled on, this court decided Madison v. Alaska Department of Fish and Game, 696 P.2d 168 (Alaska 1985), which struck down, as inconsistent with the 1978 statute, subsistence

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fishing regulations which imposed a rural residency requirement on first-tier subsistence users. Id. at 178.

The next event of significance was the passage in 1986 of chapter 52 SLA 1986, which, as noted, provides that only rural residents can be first- or second-tier subsistence users. Following passage of this act, the appellants again amended their complaint, challenging the rural preference on constitutional grounds. Both the appellants and the state moved for summary judgment. The superior court granted the motion of the state and denied the motion of the appellants. Judgment was entered on the basis of this ruling.

The setting of this case would not be complete without mention of the Alaska National Interest Lands Conservation Act (ANILCA), enacted by Congress in 1980. 2 Section 3114 of this act requires that on federal public lands in Alaska, subsistence uses are to be given priority over the taking of fish and wildlife for other purposes. Under ANILCA, only rural Alaska residents are entitled to a subsistence priority. 3 ANILCA requires federal management of public lands in Alaska in order to ensure the subsistence priority. 4 However, federal management may be supplanted by the state so long as the state enacts and implements subsistence laws "which are consistent with, and which provide for the definition, preference, and participation specified in" ANILCA. 5

After this court's Madison decision, the Secretary of the Interior notified the state that state law was no longer consistent with ANILCA and that federal management would begin unless consistency was achieved by June 1, 1986. Kenaitze Indian Tribe v. State of Alaska, 860 F.2d 312, 314 (9th Cir.1988), cert. denied, 491 U.S. 905, 109 S.Ct. 3187, 105 L.Ed.2d 695 (1989). With the passage of the 1986 act, the Interior Department has stated that Alaska is once again in compliance with ANILCA. Id.

After final judgment was entered by the superior court, the 9th Circuit Court of Appeals ruled that the definition of "rural" in the 1986 act does not comply with § 3113 of ANILCA. Id. 860 F.2d at 318. "Rural," in ANILCA, according to the court, refers to "sparsely populated" areas; "rural is the antonym of urban and includes all areas in between cities and towns of a particular size." Id. at 316-17. The court referred to Census Bureau standards under which "the urban population consists of people living in communities of 2,500 or more, while the rural population comprises everyone else." Id. at 317. Thus, the 1986 act's subsistence-oriented definition was held inconsistent with ANILCA.

Bondurant and Eastwood both reside in rural areas as Kenaitze has interpreted ANILCA's use of that term. They are thus probably entitled to injunctive relief under ANILCA, 16 U.S.C.A. § 3117(a). 6

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However, the Kenaitze decision does not change the issues presented in this appeal because the 1986 statute remains fully applicable to all non-federal lands.

Background and Purpose of the 1986 Statute

Prior to 1978, urban residents could engage in subsistence hunting and fishing. However, there was no statutory preference given to subsistence over sport or commercial fishing or sport hunting. With the enactment of chapter 151 SLA 1978, subsistence hunting and fishing was given such a priority. Madison, 696 P.2d at 174 n. 12. The 1978 statute did not bar urban residents from eligibility as first-tier subsistence users. Madison, 696 P.2d at 176. However, a regulation adopted by the Board of Fish and Game did exclude urban residents. 5 AAC 01.597. Madison held that this regulation violated the 1978 statute. Id.

In 1985 the Alaska House of Representatives adopted a letter of intent which accompanied the bill that became the 1986 subsistence act. 1985 House Journal 1246. The letter explained the rural preference of the 1986 act as follows:

This limitation of the definition of "subsistence uses"...

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55 practice notes
  • Sagoonick v. State, S-17297
    • United States
    • Supreme Court of Alaska (US)
    • January 28, 2022
    ...those dependent upon them for a livelihood and to promote the efficient development of aquaculture in the State."); see McDowell v. State, 785 P.2d 1, 5-10 (Alaska 1989) ("[S]ection 15 . . . was meant to ensure an equal right to participate in fisheries, regardless of where one resides."); ......
  • State of Alaska v. Babbitt, Nos. 94-35480
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • December 19, 1995
    ...Court struck down the state act granting the rural subsistence preference as contrary to the Alaska state constitution. McDowell v. Alaska, 785 P.2d 1 (Alaska 1989). It stayed its decision to give the legislature an opportunity to amend the constitution or otherwise bring its program into c......
  • John v. United States, No. 09–36122
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • July 5, 2013
    ...7.Id. § 3102(1)-(2). 8.Id. § 3114. 9.Id. 10.Id. § 3115. 11.Id. § 3115(d). 12.See id. § 3202(a). 13.Id. § 3117. 14.McDowell v. State, 785 P.2d 1, 1–2 (Alaska 1989) (citing Ch. 151 § 4 SLA 1978). 15.Id. at 2. 16.5 Alaska Admin. Code § 01.597 (repealed 1985), reprinted in Madison v. Alaska Dep......
  • Totemoff v. State, No. S-6151
    • United States
    • Supreme Court of Alaska (US)
    • October 20, 1995
    ...such laws, 1 but we struck down the rural preference provision of those laws as contrary to the Alaska Constitution in McDowell v. State, 785 P.2d 1 (Alaska 1989). As a result, the State fell out of compliance with ANILCA. The federal government subsequently promulgated temporary and then p......
  • Request a trial to view additional results
52 cases
  • Sagoonick v. State, S-17297
    • United States
    • Supreme Court of Alaska (US)
    • January 28, 2022
    ...those dependent upon them for a livelihood and to promote the efficient development of aquaculture in the State."); see McDowell v. State, 785 P.2d 1, 5-10 (Alaska 1989) ("[S]ection 15 . . . was meant to ensure an equal right to participate in fisheries, regardless of where one resides."); ......
  • State of Alaska v. Babbitt, Nos. 94-35480
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • December 19, 1995
    ...Court struck down the state act granting the rural subsistence preference as contrary to the Alaska state constitution. McDowell v. Alaska, 785 P.2d 1 (Alaska 1989). It stayed its decision to give the legislature an opportunity to amend the constitution or otherwise bring its program into c......
  • John v. United States, No. 09–36122
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • July 5, 2013
    ...7.Id. § 3102(1)-(2). 8.Id. § 3114. 9.Id. 10.Id. § 3115. 11.Id. § 3115(d). 12.See id. § 3202(a). 13.Id. § 3117. 14.McDowell v. State, 785 P.2d 1, 1–2 (Alaska 1989) (citing Ch. 151 § 4 SLA 1978). 15.Id. at 2. 16.5 Alaska Admin. Code § 01.597 (repealed 1985), reprinted in Madison v. Alaska Dep......
  • Totemoff v. State, No. S-6151
    • United States
    • Supreme Court of Alaska (US)
    • October 20, 1995
    ...such laws, 1 but we struck down the rural preference provision of those laws as contrary to the Alaska Constitution in McDowell v. State, 785 P.2d 1 (Alaska 1989). As a result, the State fell out of compliance with ANILCA. The federal government subsequently promulgated temporary and then p......
  • Request a trial to view additional results

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