CARPENETI, Chief Justice.
In 1999, the Board of Fisheries (the Board) made a positive customary and traditional use finding in the Chitina subdistrict for the first time, thereby changing it from a "personal use" to a "subsistence" fishery. The Board reversed this decision in 2003,
The Chitina fishery is located along the Copper River, about 250 miles east of Anchorage and 250 miles south of Fairbanks. The Ahtna Tene Nené (Ahtna) people have been fishing in the Copper River Basin for at least the past millennium. The Ahtna people originally utilized dipnets to catch salmon, but they later adopted fishwheels, which provided a more efficient means to catch large numbers of fish. After World War II, the construction of highways from Alaska's population centers brought many non-Natives to the area who adopted the Ahtna methods of dipnet fishing.
In the 1970s, the Board split the basin into two subdistricts separated by the Chitina-McCarthy Road Bridge: the Chitina subdistrict to the south and the Glennallen subdistrict to the north. Due to differences between dipnet and fishwheel fishing methods, Chitina was more popular with non-Natives and visitors while Glennallen was largely populated by Natives and year-round residents. As AFWCF noted:
Non-locals preferred dipnets because they were easier to transport, did not require a permanent presence near the river, and suitable dipnet sites were more easily accessible.
The Board first examined the use of Chitina salmon stocks in 1984; by examining only uses by rural residents, it found no customary and traditional subsistence uses of salmon in the Chitina subdistrict. The Chitina area was then designated for "personal use," open to all residents for dipnet fishing, while the Glennallen area was classified for "subsistence use," thereby open only to local residents who could use either fishwheels or dipnets.
On January 13, 2009, shortly after the Board refused to reclassify the Chitina fishery at its 2008 meeting, AFWCF filed its First Amended Complaint for Declaratory Judgment and Injunctive Relief. AFWCF claimed that 5 AAC 99.010(b) was unconstitutional on its face and as applied. The State of Alaska, Alaska Board of Fisheries, and Alaska Department of Fish and Game (the State) filed their answer on February 23, 2009. AFWCF filed a motion for summary judgment on March 12, 2009. Ahtna moved to intervene and filed an answer to the original complaint on April 16, 2009. The State and Ahtna then filed cross-motions for summary judgment, and oral argument on all motions was held on June 24, 2009.
On December 31, 2009, the superior court issued a decision and order granting declaratory judgment largely for the State and Ahtna. Specifically, it found that the regulation itself was valid; that the Board's classification does not violate the uniform application and equal protection provisions of the Alaska Constitution; and that the Board properly applied 5 AAC 99.010(b), except with regard to criterion eight. With regard to criterion eight, the superior court found that the
On remand, the Board generated a proposal to define "subsistence way of life" for purposes of customary and traditional use findings and, after public notice and a hearing, adopted the regulation. After receiving a report of agency action on remand in April 2010 and holding a status conference regarding the new regulations, the superior court granted final judgment on October 21, 2010. AFWCF now appeals. The State and Ahtna cross-appeal to contest the superior court's conclusion that it was improper for the Board to consider the per capita consumption of wild foods in the users' home communities in applying 5 AAC 99.010(b)(8).
Whether summary judgment was properly granted is a question of law and is reviewed de novo.
When reviewing the Board's policy or the Board's application of law to a particular set of facts, decisions that are based on Board expertise, we apply a reasonableness standard.
Alaska Statute 16.05.251(a)(6) states that "[t]he Board of Fisheries may adopt regulations it considers advisable ... for ... classifying as commercial fish, sport fish, guided sport fish, personal use fish, subsistence fish, or predators or other categories essential for regulatory purposes...." The superior court held that this statutory mandate plainly authorized the Board to classify a fish stock as subsistence or personal use. The superior court noted that the subsistence statute, AS 16.05.258, requires the Board of Fisheries to "identify the fish stocks ... that are customarily and traditionally taken or used for subsistence."
AFWCF brings several challenges to the constitutionality of the regulation. First, it maintains that 5 AAC 99.010(b) is invalid because it is "not consistent with, reasonably necessary to implement, or a reasonable interpretation of the subsistence statute" because "the subsistence statute was designed and intended to protect the subsistence rights of urban Alaskans, specifically the rights of Fairbanks based Chitina dipnetters." Thus, AFWCF claims that the regulation is invalid because it declines a subsistence classification for the preferred fishing area of these urban residents. AFWCF explains that the current regulation originated with an effort by the joint boards to limit subsistence classifications to rural residents. Although the law no longer contains this explicit limitation, which was invalidated by our decision in McDowell v. State,
We reject the assertion that the statute necessarily leads to an impermissible urban/rural distinction even though part (a) was previously invalidated; if anything, the Board's 1999 determination indicates the falsity of this premise. If AFWCF is to successfully contest the constitutionality of part (b) of the regulation, it must identify a problem with part (b) instead of hinging claims on the already-invalidated part (a) and alleging that the same issues carry over to corrupt part (b) as well.
AFWCF also argues that the subsistence statute is "clear and complete" and does not require further application of agency expertise because it includes a definition of "customary and traditional" and "subsistence uses." AFWCF asserts that the regulation is used to "justify comparing user groups rather than uses of the fish stock or game population." AFWCF also contends that the eight enumerated criteria are not necessary to implement the subsistence statute because, rather than clarifying ambiguous statements by the legislature, the regulation introduces criteria that have no statutory basis and "inevitably lead to determinations in favor of rural residents that live near the resource and against non-rural users who travel to the resource." It also claims that by requiring the Board to examine community use patterns, the regulation leads to an impermissible focus on users rather than uses, which we struck down in Payton v. State.
We decline AFWCF's request and instead hold that 5 AAC 99.010(b) is constitutional, consistent with its enabling statute and reasonably necessary to carry out the purposes of the subsistence statute. Alaska Statute 16.05.251(a)(6) explicitly gives the Board authority to adopt regulations for classifying fisheries as commercial, sport, personal use, subsistence or other. Alaska Statute 16.05.258(a) requires the Board of Fisheries to "identify the fish stocks ... that are customarily and traditionally taken or used for subsistence." When read together, these statutes allow the Board to create regulations for classifying fish and for identifying the particular fish stocks that align with subsistence use patterns. We also reject AFWCF's assertions that the subsistence statute is clear enough on its own terms so that this regulation is unnecessary and it is only used to implement a rural bias. The subsistence statute provides a general definition of the requirements for subsistence use, but the regulation provides definitions of each specific component and guidelines for how they should be applied. The joint Board of Fisheries and Board of Game enacted 5 AAC 99.010(b) to provide a list of criteria that were relevant to consider when fulfilling their statutory mandate.
AFWCF argues that the subsistence statute was intended to grant subsistence rights to any long-term users of an area, but this argument ignores the clear legislative intent in passing AS 16.05.940, which was to provide for actual subsistence uses and preserve a traditional culture and way of life.
AFWCF also maintains that it is improper for the Board to consider the "cultural, social and economic context in which harvest takes place," but as noted above the legislature specifically intended the Board to take this information into account. Personal use fisheries may meet the subsistence statute's consistency and duration requirements, but they may also fail to carry the cultural, social, spiritual, and nutritional importance that the subsistence statute protects.
AFWCF also challenges the regulation as a violation of the equal access provisions of article VIII of the Alaska Constitution, specifically citing sections 3 (Common Use),
AFWCF maintains that the "eight criteria [of 5 AAC 99.010(b) have] so often been misapplied by the Boards and by Superior Court judges and have led to so many equal protection violations that this Court must strike the entire regulation." The core of AFWCF's argument is that this regulation allows the Board to impermissibly distinguish among users, not among uses, in violation of the equal access provisions in article VIII of the Alaska Constitution. AFWCF relies on our decisions in Madison,
We agree with the superior court that this regulation does not implicate the equal access, uniform application, or equal protection clauses of either the state or federal Constitutions.
The superior court held that the Board's application of 5 AAC 99.010(b) to the
AFWCF argues that "[t]he transcript of Board deliberations shows clearly and convincingly that the Board focused primarily on the users rather than the use" while applying the eight criteria of 5 AAC 99.010(b) in 2003. AFWCF specifically takes issue with the application of criteria one, three, five, six, and eight, claiming that the Board impermissibly compared user groups when analyzing these factors. AFWCF maintains that instead of remanding to the Board to clarify the standard it used when applying criterion eight, the trial court should have struck the regulation in its entirety. It further argues that the subsistence statute already clearly defined what is meant by a "subsistence way of life" in its definition of "subsistence uses" and that the Board should not have been "ordered to again create its own subjective definition." Even as amended, AFWCF continues to object to criterion (b)(8) on the grounds that it "seems to require a user who can claim that the resource is necessary to provide the basic necessities of life" and declares that the Board will respect these claims only when made by rural indigenous users. In support, AFWCF points out that in 2003 the Board was "specifically directed to compare Native use in Glennallen with non-Native use in Chitina" whereas the Board in 1999 was "specifically cautioned against comparing Native use and non-Native use" in the wake of our decision in Payton v. State.
The Board's application of 5 AAC 99.010(b) was proper. As we noted in the previous section, the subsistence statute provides guidance for interpreting its terms, but the Board still has discretion to define its key terms, such as "long-term," "reliance," and "subsistence way of life."
Although the customary and traditional use determination here is a close call, it is possible for different boards to come to different conclusions, as demonstrated by the Board's 1999 and 2003 findings. These differing conclusions only highlight the need for this regulation, which provides some guidance for the application of otherwise general terms and principles; without it, nearly every decision of the Board could seem arbitrary. The Board focused on use patterns in the Chitina subdistrict when making its customary and traditional use determination and, contrary to AFWCF's contentions, it did not impermissibly focus on users. Thus, its application of the regulation was proper.
The superior court held that it was improper for the Board to consider the per capita consumption of wild foods in the home community of the user when making its customary and traditional use findings for the Chitina subdistrict. It reasoned that this comparison would effectively reflect an impermissible urban/rural distinction that would serve only to disqualify use by urban residents. It held that this information was "immaterial to the reliance placed on the fish and game by the user" and thus could not be taken into account by the Board.
The State and Ahtna challenge this ruling in their cross-appeal. The State claims that the community harvest data was relevant, reasonable, and not arbitrary, and did not otherwise violate substantive due process standards. It asserts that community per capita harvest information has probative value as part of a body of evidence presented to the Board regarding the extent and depth of reliance on fish and game resources by Chitina fishers. Thus, it argues that the data serves a logical purpose and the Board should be allowed to consider it on a case-by-case basis. The State also argues that community data was relevant and notes that separate statistical data on the harvest of wild foods only by Chitina fishery participants was not available. The State explained that this community data was considered along with supplemental information indicating that individual harvest levels in the Chitina fishery were higher than the community per capita average and, taken together, this information was not unduly prejudicial to urban users.
The State contends that, because the question of whether a subsistence fishery will be created does not restrict admission to a resource user group and therefore does not implicate the equal access provisions of the Alaska Constitution, McDowell's limitations on urban/rural distinctions do not apply. The State points out that the Board is allowed to take community per capita harvest information into account when establishing non-subsistence areas so it is already established that this information is relevant to the subsistence inquiry. The State also argues that, because the Board may consider the use of community-wide data on the cost of food and gas when awarding subsistence permits, it is similarly reasonable for the Board to consider community harvest data when classifying use patterns in fisheries since both data sets indicate the ability of the subsistence user to obtain alternate food sources if
Ahtna emphasizes the importance of community-based data, noting that "[s]ubsistence uses include[] patterns of sharing, customary trade, barter and reliance that extend beyond just the individual user to the broader community, to a pattern of consistently sharing with elders, widows, and neighbors in need." Ahtna maintains that it is necessary to look at communal use patterns to see if they align with a subsistence way of life and customary and traditional uses. Ahtna believes that AFWCF's objection to Chitina's personal use classification arises from its frustration with the State's acknowledgment of non-subsistence use areas; since these fishers cannot fish near their homes, they protest when "a fishery established by urban residents ... hundreds of miles distant is a personal use fishery rather than a subsistence fishery."
Additionally, the State and Ahtna maintain that board members have enough expertise to give this information the proper weight it deserves and it is not improper "absent a showing of undue reliance on it in the face of better available information." The State contends that the record shows no such improper reliance on this data by board members nor does it demonstrate a disqualification based on community residence. In the absence of a finding that board members even took per capita data into account when making their classification decision in 2003, the State argues that the superior court's opinion regarding this data is merely advisory, because it proscribes information that the State should not consider in the future. The State argues that even if this data is improper, the "mere presence in the Board's administrative rule-making record of [misleading] data ... cannot support invalidation of a Board regulation."
AFWCF counters that per capita consumption information is irrelevant to the Board's decision because the lower numbers for urban areas "reflect usage by all residents of those areas, including many who do not engage in any subsistence activity whatsoever." AFWCF emphasizes that this information only leads to customary and traditional use determinations biased in favor of rural users; it points to the use of this data by federal regulators as an example of how such data leads to the rural/non-rural distinctions that are central to the federal subsistence inquiry but prohibited under the Alaska Constitution. Thus, it argues that federal consideration of this data shows that the State's use of it is suspect because state law prohibits making rural/non-rural distinctions. AFWCF avows that the community per capita harvest information is not relevant to the Board's customary and traditional use inquiry and can only mislead board members about the actual use patterns of urban residents.
We agree with the superior court's conclusion that it would be improper for the Board to rely exclusively on community per capita consumption to establish customary and traditional uses, but the categorical exclusion of such data is also unwarranted. Although it would be improper for the Board to compare actual per capita use by Glennallen fishery users with community-wide average use in urban areas, per capita consumption data of a specific community is not necessarily problematic. This data is relevant to establish use patterns and it may be reasonable in some contexts if the Board chose to consider it. If this information were used to determine whether an individual user is qualified as a subsistence user, the per capita consumption data would be invalid under Manning. Here, however, the Board is looking at subsistence use patterns, not individual use, and therefore looking at community data may be relevant, especially when ascertaining whether a community of users really depends on this resource for their livelihood
Additionally, there is no evidence to suggest that this data was actually relied upon when the Board made its customary and traditional use finding for Chitina in 2003. Without such evidence, it is simply another piece of information in the administrative record and may not be a basis for overturning the regulation or the finding.
Because the regulation is valid on its face and as applied and there is no violation of the equal access provisions of our constitution, we AFFIRM the decision of the superior court upholding the regulation. We REVERSE the ruling that it was improper for the Board to be presented with information regarding the per capita consumption of wild foods.
CHRISTEN, Justice, not participating.
