289 P.3d 903
Alaska2012Background
- Board initially found Chitina subdistrict used for subsistence in 1999, then changed to personal use in 2003.
- AFWCF and Chitina Dipnetters Association challenged 2003 classification and 5 AAC 99.010(b) as unconstitutional on face and as applied.
- Superior Court upheld regulation but remanded to articulate standard for criterion 8 and excluded per capita home-community consumption on remand.
- On remand, Board defined subsistence way of life and again upheld classification; later, final judgment affirmed, except as to per capita consumption data.
- Petitioners appeal; State and Ahtna cross-appeal on use of per capita consumption data; court reviews under de novo standard for law.
- Regulation 5 AAC 99.010(b) sets eight criteria to identify subsistence uses and guides Board’s C&T determinations and is applied to Chitina in 2003 and 2008.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Facial validity of 5 AAC 99.010(b). | AFWCF contends regulation is inconsistent with subsistence statutes and improperly shifts focus to rural use. | Board regulation is consistent, reasonable, and necessary to implement subsistence statutes. | Facially valid and reasonably implements statutes. |
| Equal access and uniform application concerns. | Equal access clauses barred rural bias; regulation creates urban-suburban discrimination. | Regulation affects classification of fisheries, not individual access; no equal protection violation. | No equal access violation; regulation does not discriminate among similarly situated users. |
| Board's 2003 application of 5 AAC 99.010(b) to Chitina. | Board used ill-defined, subjective criterion eight; relied on user comparisons. | Board used objective standard, engaged in reasoned decision-making; remand corrected definition. | Application proper after defining criterion eight; decision upheld. |
| Use of per capita consumption data in home communities (criterion 8). | Data would create urban/rural bias and should be excluded. | Community data relevant to subsistence reliance; not determinative; may be considered. | Partial reversal; data not to be exclusively relied upon; permissible as part of record. |
Key Cases Cited
- State, Dept. of Fish & Game v. Manning, 161 P.3d 1215 (Alaska 2007) (equal access inspections; residency limitations impermissible per se)
- Madison v. Alaska Dept. of Fish & Game, 696 P.2d 168 (Alaska 1985) (subsistence statutes; rural residency constraints invalidated)
- Payton v. State, 938 P.2d 1036 (Alaska 1997) (Board cannot require current users to be related to past generations for subsistence)
- McDowell v. State, 785 P.2d 1 (Alaska 1989) (substance statute cannot limit subsistence to rural residents; equal access concerns )