Charles v. State

And I can envision other similar scenarios— happen sponsors will when initiative

what Sr., Appellant, Marvin L. CHARLES necessary signatures have almost all of the prevented by but are some force nature other circumstances outside their control Alaska, Appellee. STATE of obtaining signatures

from those last few requisite period? Why time would within No. A-10202.

they not be entitled to have the court deter- Appeals Court of of Alaska. sponsors mine the likelihood that the other- wise would have succeeded and balance that June hardships, having with the instead start again? all over Once the court has moved enforcing express

from constitutional and

statutory using standards to them as mere

guidelines judgments, for ad hoc there

telling ensuing slippery slope where on the ultimately

line will be drawn. readily agree I that the result I advo- requiring petition that a new be circu- cate — signatures

lated for harsh. It is evident —is sponsors would have obtained suffi- signatures petition

cient on the within the

requisite period time if a fair im- even

partial summary presented had been in the

petition unquestionably booklets. It is unfair sponsors should suffer the conse-

quences Department of a mistake But

Law. the facts and circumstances of this

particular justify case do not the creation of a legal

new framework will lessen incen- impartial petition

tives for accurate and sum- change constitutionally

maries and will screening bright-line

based standard from varying judges.

rule to the views of important

The initiative is an tool for citi-

zen making. law But no initiative should be

presented on an election ballot it has not

met existing statutory constitutional and

screening standards. If an petition initiative

summary gather signatures used to is not

legally acceptable, the initiative should be petition

barred the ballot and a new

circulated impartial accurate and

summary Alaska Constitution and AS

15.45.090(a)(2)require. petition Because

summary in legally accept- this case was not

able, I would bar the initiative from the

ballot. Kerry,

Glenda J. Law Office Glenda J. Girdwood, Kerry, Appellant. for the West, Stephen Attorney, R. District Ket- chikan, Sullivan, Attorney and Daniel S. Gen- eral, Juneau, Appellee. COATS, Judge,

Before: and Chief BOLGER, Judges. MANNHEIMER and OPINION BOLGER, Judge.

Marvin L. Charles Sr. was convicted of hunting regulations several state to the taking related of does on Prince of argues Wales Island. evidentiary hearing entitled to an in district hunting regulations court to show that the were invalid because conflicted fed- requiring eral law a priority for subsistence hunting. uphold We the district court’s deci- deny sion because Charles did dispute not raise factual about validi- ty regulations.

Facts and Charles was convicted of five counts possession transportation unlawful or possession game,1 four counts of unlawful Charles also an evidentiary asked for hear- ing to establish that he transportation that had evidence of was entitled to de- fend at trial removed,2 showing sex without the re- (1) the deer were taken for subsistence quired harvest ticket.3 Charles’s violations (2) purposes all involved deer shot on federal land they unreasonable because provide September Prince of Wales Island opportunity satisfy him an his subsistence Only antlered bucks could be hunted on needs. Prince of Wales Island at the time.4 Howev- er, Superior that Stephens, Charles admitted at least three of Court Trevor N. court, sitting in the district that denied the the deer were taken his motion State,7 Relying to dismiss. on party were does.5 Judge Stephens ruled that ANILCA did not trial, Before Charles moved for dismissal preempt the state regulating hunting on charges, arguing regula- of the that the state federal lands in long regula- Aaska as as the tions conflicted with the priority subsistence tions did not conflict with federal He law. mandated the Alaska National Interest ruled that the state allowing hunt- (ANILCA).6 Lands Conservation Act of 1980 ing by non-subsistence hunters on Prince of regulations that Wales Island did not conflict with federal law were defective because did not establish responsible agencies because the federal priority required by for subsistence use as also not restricted non-subsistence ANILCA, encouraged Judge Stephens and therefore the area. deple- also found that Charles had not tion of a offered evidence to Congress specifically resource “that show dangerously there was a skewed directed be buck- primary purpose used for the Island, to-doe ratio on Prince of Wales or non-wasteful subsistence.” Charles asserted that there was no valid reason under ANIL- that non-subsistence hunters had decreased CA to limit the hunting of does. bucks, population exerting “an ever- increasing pressure on subsistence users’ ef- reconsider, Charles filed a again motion to forts to feed themselves and their families requesting hearing. In his means of their way traditional subsistence reconsider, of motion to Charles conceded that life.” pertinent federal governing (AAC)92.140(a) 85.030(a)(2) that, 1. 5 Alaska Administrative Code provides 4. 5 AAC between Au- provides: gust bag 1 and December limit for Prince person may possess, (Southeast transport, give, No re- Region of Wales Island Game Man- ceive, game parts game or barter 2) or agement Unit is four bucks. See 5 AAC person knows or should know were taken in 92.450(2) (describing Management Game Unit regulation adopted violation of AS 16 or a regulations provide Federal bucks AS under may July be taken in Unit 2 between 24 and 242.26(n)(2); § October 15. 36 C.F.R. 50 C.F.R. 92.150(b)provides: 2. 5 AAC 100.26(n)(2). § animal, big game except If of a sex, sheep, person may is restricted to one possess 16.05.920(a) (a transport person may or 5. See AS carcass of an not take portions animal unless sufficient game permitted by exter- regulation). unless statute or organs nal sex conclusively remain attached to indicate animal, except the sex of the Congress opportunity intended "to proof antlers considered sex for deer if engaged way for rural residents in a subsistence naturally the antlers are attached to an entire 3112(1). § of life to do so.” 16 U.S.C. Subsis- carcass, viscera; however, with or without the public tence harvest of fish and wildlife on lands apply this section does not to the carcass of a priority must be accorded over the of fish big game placed animal that has been cut and and wildlife for other 16 U.S.C. storage prepared consump- or otherwise for § Agricul- 3114. The Secretaries of Interior upon tion arrival at the location where it is to promulgate regulations ture are nec- be consumed. essary implement priority. 16 U.S.C. 92.010(f)provides pertinent part: § 3124. deer, person may except [A] not hunt ain hunt, permit posses- unless the has in 7. 905 P.2d 954 sion a deer harvest ticket[.] tickets and to leave have deer Island almost Prince of Wales hunting on attached —interfered identification clarified that deer’s sex regulations. He state mirrored rights. Charles has his subsistence and state with the federal claim was challenge regu- to those waived his him of ANILCA’s therefore deprived regulations both briefing.9 by inadequate equal him lations by placing on priority subsistence He hunters. footing with non-subsistence unlawfully the five counts of This leaves hearing “would show that a asserted jury game. The transporting or possessing by non-subsistence put pressure be that those five counts could was instructed has, fact[,] recognized by the been users prove ways: the State could proved two Board, that it has Subsistence Federal transported possessed preserve addressed to not been a deer harvest tick- taken without hunting needs.” [his] et, prove that Charles or the State could reconsider, Judge denying the motion tak- transported does that were possessed acknowledged that had the Stephens Charles al- harvest limit that en in violation of the regula- challenge the of right to taking bucks. of antlered lowed violating. But he charged with tions he was theory it jury specify which The did appeared to that that Charles concede noted Therefore, we relied on to convict Charles. Board had consid- the Federal Subsistence required Charles’s convictions to reverse raising and had concerns he was ered the counts if he establishes on those five not to further restrict deer decided limit invalid.10 harvest is of Island. He concluded on Prince Wales challenges particularly the district Charles attempting what to raise deny without decision to his motion court’s appeal an an administra- was “in essence evidentiary hearing. The entitlement to a tive decision.” hearing governed by Alaska generally is trial, raised the affirmative de- At Charles moving party Rule 42. A must Criminal to all the necessity fense of material include a “detailed statement except charge without “documentary all evidence” that facts” and ticket, arguing a that the deer not re- supports a motion.11 The court is emergency.”8 He testi- taken “due to dire if hearing on a motion quired to hold overnight fishing trip on an fied went in presented issues fact are not “material trapped with relatives and friends and was pleadings.”12 by rough Island seas. on Prince of Wales He testified that the deer were shot when to a Was Charles entitled jury party of food. The fishing ran out subsistence defense? rejected and convicted Charles defense appeals. of all counts. He now he Charles’s first claim is that entitled to raise a subsistence defense Discussion him, charges against and that Ste him an phens granted should have evidentia- explained has not how two support ry present violat evidence regulations he was convicted of claim, support of this requiring hunters to that defense. ing regulations —the Co., 16.05.930(b) ("This chapter v. Mutual Ins. does not See Petersen 8.See AS Life person prohibit a fish or dur- season, emergency, in case of dire the closed by regulation adopted appropri- as defined ate Stale, (Alaska Vigue See v. board.”); 92.990(a)(13) (defining "dire App.1999). emergency” to a situation in which the mean area; (A) (B) involuntarily in a remote 42(b)(1) (2). R.Crim. P. & 11. Alaska experiencing to sus- an absence of food life; (C) facing high risk of death or tain 42(e)(3). permanent problems wild and health P. serious game 12. Alaska R.Crim. taken; (D) immediately food is not expect to obtain other food sources cannot time). the Ninth challenged Charles cites Circuit’s decision establishing Alexander,13 roe, herring United States harvest limits for arguing that neglected the Board of Fisheries had to allow Alexander involved defendants convicted customary for sales made trade when it transport in federal court for the interstate established harvest limits.21 The Ninth herring taken or roe sold violation of Circuit declined to consider that claim be- government Alaska claimed that law.14 presented cause the defendants had no evi- the defendants violated dence of what was considered the Board prohibited herring caught the sale of roe adopted of Fisheries when it the harvest subsistence, for and the state proceed- limits nor record of the Board’s herring appeal set catch limits for roe.15 On ings.22 Likewise Charles offered Circuit, to the Ninth the defendants record administrative that those state were invalid be- no evidence of what was considered “customary cause interfered with Board of adopted Game when it the harvest trade,” protected by a subsistence use ANIL- prohibited limit that of does. We CA.16 The Ninth Circuit concluded that the conclude that Charles was not entitled to a herring protected sale of was a roe subsis- hearing under the reasoning of Alexander. tence use that fell within ANILCA’s defini- trade,” “customary tion of and that Alaska’s may arguing broadly be more prohibition blanket on such sales conflicted ANILCA entitled him to defend with ANILCA.17 The court did not strike that'(l) charges criminal by showing at trial however, down the instead hold- the deer were shot for non-wasteful subsis ing that the defendants would be entitled to (2) purposes tence limit harvest acquittal they proved by preponderance unreasonable because it did not him engaged the evidence that in opportunity satisfy to his subsistence “customary trade” under ANILCA.18 But needs. such a precluded by defense is Eluska, Alexander not State v. Eluska23 In binding is on this court.19 the defendant were, killed a only But even if it it would deer out of season and control the possessing in with transporting game cases which a state interfered taken “customary hunting with violation of state trade” as defined in ANIL- laws.24 In his defense, alleged CA.20 Charles has not he claimed that regu- regula the Board’s tions failed to impeded lations at issue his case differentiate custom- between subsis trade, ary hunting tence regulators or that state and other by proper take account statute.25 customary trade when they set the harvest limit for deer on Prince Supreme The Alaska Court ruled that Island. Wales right Eluska had no to hunt for subsistence

If anything, suggests Alexander the absence of a authorizing Charles was not hunting.26 entitled to an rejected such The hearing. The defendants Alexander agency’s also the view that “an failure to act in (9th Alexander, 13. 938 F.2d 942 Cir. 20. See 938 F.2d at 948. 14. Id. at 945. 21. at Id. 946-47.

15. Id. at 945-46. 22. Id. 16. Id. at 945. 23. 724 P.2d 514

17. Id. at 946.

18. Id. at 948. 24. Id. at 514. Totemoff, (noting 905 P.2d at 963 that Alaska Id. by courts are not bound decisions of federal Supreme courts other than the United States law) questions (citing Court on of federal In re at Id. F.P., (Alaska 1992)). 1215 n. 1 Federal subsis- limit of four bucks.32 statutory requirement accordance Alaska regulations authorized rural regulated tence that those who means Prince of Wales they were not to hunt deer on though residents may act as agency Eluska, July 24 31 and set we conclude to December Based on Island regulated.”27 deer, to defend one of those deer entitled a limit of five was not deer, asserting and the antler- be an antlerless against these could for subsistence to be taken between October were shot less deer had does conduct took and December 31.33 Charles’s to a entitled Was Charles 2006, at a time when both place September validity challenge the to regulations prohibited and federal state regulations? the state hunting of does. remaining question is whether claims that nevertheless evidentiary hear to an was entitled be regulation conflicts with ANILCA state regulation was state to show depleted have the buck cause nonresidents priority the subsistence inconsistent with to meet his leaving too few bucks population, Totemojf, the mandated ANILCA. needs. He asserts Congress in enact supreme court held game by non-subsistence “pressure put on only preempted enforcement of ing ANILCA fact[,] has, recognized by the been “actual users there was hunting laws when state Board, but that it has law.28 Federal Subsistence and federal between state conflict” preserve been addressed state and an actual conflict between There is needs.” He ar with the Mr. Charles’s subsistence “if the state law conflicts federal law (a) impos disputed it assertions created gues the extent that that these federal law to simultaneously with both or fact with comply issues of material sible (b) obstructs the execu and federal of the state regula the federal purpose entitled to a tion and that he was 29 dispute. tion.” resolve this charged Totemojf, the defendant was In Totemojf, supreme court clarified In violating regulation prohib- a state with prevent not a subsistence that Eluska did spotlight.30 a hunting with the aid of ited regulation arguing from that the he hunter direct conflict between the There was no violating charged with was invalid.34 anti-spotlighting regulation and state’s general terms Charles asserted regulation because a feder- federal statute gave inadequate priority regulation that the prohib- regulation also al subsistence needs, that the Federal to subsistence spotlight.31 a taking game with the aid of ited pressure Board was aware of the Subsistence put game non-subsistence users no actual conflict There is likewise problem. not addressed the in this case because Charles’s with ANILCA the court with illegal and But Charles did conduct was under both state proceedings to regula record of administrative hunting regulations. Alaska’s federal regulators or federal hunting on Prince of show that state tion authorized enacting required procedures follow for residents and nonresidents Wales Island incep- regulation, regulation or that the at its 1 31 and set a August to December 16.05.920(a) taking (prohibiting the of 32. AS 27. Id. authorizing taking); game a absent 85.030(a)(1) bag (setting limit in Game 28. 905 P.2d at 960-61. Unit State, Progressive Dep’t Commerce v. Cas. 242.26(n)(2); 624, Co., (Alaska 2007). § 50 C.F.R. 33. 36 C.F.R. P.3d 632 Ins. 165 100.26(n)(2); Taking § of Fish see Subsistence 37642-01, Fed.Reg. Regulations, 71 Wildlife 92.080(7)). (citing 5 AAC 30. 905 P.2d at 957 (June 30, 2006). 242.23(b)(l)(vii) § (citing Id. at 960 36 C.F.R. Totemojf, (1990)). at 905 P.2d MANNHEIMER, unreasonable, arbitrary, Judge, concurring. tion was otherwise words, In other or an abuse of discretion.35 I separately emphasize key write a as- assertions, more, without did not Charles’s pect analysis of our of this case: our inter- that he could be entitled to relief.36 pretation Supreme of the Alaska Court’s de- Judge Stephens found that And after State, cision in v. 905 P.2d 954 deficient, proof Charles’s offer made no effort to correct defi- ciency when he filed his motion to reconsider. portion opinion final its Totem any proof contrary, In the absence of 969-973, off, supreme at court obliged presume court was district question addressed the of whether a defen were valid.37 violating hunting dant who is with a Our conclusion is consistent other de- against charge by can defend holding cisions that individuals are not free attacking regulation. simply they believe to break laws because supreme court that a concluded defendant instance, legal. them conduct should be For properly can assert person against charge defend a a cannot i.e., procedurally proceed by asserting driving without a license invalid — license; ings leading up government wrongly regu denied the to the enactment of the challenge the defendant must the denial of irregular respects. lation were in one or more appropriate the license in civil or administra- 905 P.2d at 972-73. But at the same proceedings.38 Similarly, person a can- tive time, court reaffirmed its earlier against charge a a not defend Eluska, decision in 724 P.2d State restraining by asserting that there order (Alaska 1986),that a defendant is not entitled grounds for the court to were insufficient against charge illegal hunting to defend a issue the order.39 And cannot de- by asserting that the act unlawful charge illegal hunting fend was done for subsistence asserting regulators that state or federal at 969-971. wrong judgments made the when set game. harvest limits for 16.05.259, See also AS which states: “In a Managing game for and other prosecution of fish or competing complex uses is a task that re- violation of statute or it is not a quires expertise. The district considerable defense that the was done for subsis- correctly recognized it had no Totemoff, supreme In tence uses.” authority judgment to substitute its for that interpreted codifying this statute as agencies involved with “that court’s decision Eluska unauthorized efficacy regulations.40 wisdom or of these hunting does not it become lawful because hunting”. 905 P.2d at 970.

Conclusion Totemoff, the defendant therefore AFFIRM the district court We (a judgment. regulation he was 358, Morry, Anchorage, 35. State v. 836 P.2d 362-64 & 362 n. 37. See State v. First Nat’l Bank 660 406, (Alaska Alexander, (Alaska 1982) ("AS 44.62.100(a) 1992); 425 3 see also 938 F.2d at presumption (rejecting a rebuttable 947 the claim that a state establishes procedural requirements promulgation establishing herring for the catch limits for roe inter- satisfied.”). administrative have been fered with ANILCAbecause the defendants had presented no evidence of "what was or was not 535, State, (Alaska considered the Board of Fisheries” when it 38. See Tenison v. 38 P.3d 538 limits, adopted provided the catch App.2001). and had no proceedings). record of the Board’s State, 1075, (Alaska 39. See Jacko v. 981 P.2d 1077 State, 567, pp.1 A 36. See Marshall v. 198 P.3d 572-73 (Alaska App.2008) (explaining that an Revenue, moving party State, Eagle Dep’t is not unless the 40. See 153 P.3d State, (Alaska 2007); showing files affidavits or other evidence Meier v. Bd. Fisheries, relief). may be entitled ... has been rec- hunting [hunters] of non-subsistence prohibited the regulation that Board, proce- ognized the Federal Subsistence spotlight) of a with the aid deer pre- ... has not ... Board] the Board of Game durally [the invalid because Mr. Charles’ subsistence serve[d] to determine separate no held spot- needs”. prohibition on the use whether the hunting. lights apply to subsistence should words, did not assert that In other Charles supreme court re- P.2d at 971-72. The adoption of deer- Board of Game’s the. the Board was

jected the contention that invalid, procedurally hunting regulation was hearing on separate hold a sub- required to lacked reasonable or that the issues, the court then noted sistence regulatory areas of relation to the Board’s had offered no evidence Totemoff authority defined in AS 16.05.255-270. In- failed to consider subsistence Board of Game stead, argued that the Board during the administrative uses wrong conclusion when it reached regulation. leading up adoption weighed the needs of subsistence hunters Given the lack of evi- 905 P.2d at 972-73. popula- the need to husband the deer point, given presump- dence on this the district court to tion. Charles wanted regularity, tion of court held hearing, purpose not for the of show- hold a even a that Totemoff failed irregularity in legal that there was pro- ease that the prima facie the Board’s enactment of the cedurally invalid. Ibid. purpose second-guessing rather Returning to the facts of Charles’s man- the Board’s decision on issues that the Alaska Charles offered evidence agement. and Eluska hold that Board of Game or the Federal Subsistence proposed “defense” is not allowed. Board failed to consider subsistence uses on on

when set the limits Rather,

Prince of Wales Island. out,

Bolger’s opinion points ap- lead

parently opposite. dis- concedes pleadings,

trict court Charles declared that though] pressure put game by

“[even

Case Details

Case Name: Charles v. State

Court Name: Court of Appeals of Alaska

Date Published: Jun 11, 2010

Citation: 232 P.3d 739

Docket Number: A-10202

Court Abbreviation: Alaska Ct. App.