Grunert v. State

parties to voluminous le- in their favor. allowed the submit Eldridge39 tilts v. Mathews record, briefing. three fac- we conclude gal consideration of On this requires That test procedural harmless. error was tors: First, that will be af interest private action; second, the official fected IV. CONCLUSION deprivation of such an erroneous risk of the commissioner’s decision is Because used, procedures through the interest supported by evidence and com- substantial value, any, if of additional or probable governing ports with the lease and safeguards; fi procedural substitute law, corporations have failed and because the interest, including nally, the Government’s they preju- suffered substantial to show fiscal and involved and the function refusal to allow dice from the commissioner’s that the additional burdens administrative participate hearing their counsel requirement procedural substitute commissioner, we AFFIRM the before the entail.[40] would corpora- denying commissioner’s order case, present to the Applying this test discovery royalty. application for a tions’ that a valuable con-

corporations maintain stake, procedural con- right at tract of erroneous “a serious risk

straints created valuable contract

deprivation of Lessee’s argument

right,” allowing the additional one-day hearing converted the

“would have two-day hearing akin to the limit-

into by the Lessees of requested

ed trial de novo corporations As the Superior Court.” GRUNERT, Appellant, Michael claim, private rights contract at correctly hearing significant. The cost of a issue are cross-examination, and representation, of Alaska and STATE Seiners would have been argument oral on the state Association, Inc., Appellees. Furthermore, the value of relatively small. No. S-10841. representation safeguard attorney’s an process due is certain. Supreme of Alaska. Court convinces us But our review of the record 17, March 2005. rep- failure to allow that the commissioner’s hearing corporations’ at resentation 22, Rehearing April Denied corpora- amounted to harmless error. specific proof offer of to estab- tions made no potential prejudice below and have failed

lish identify any prejudice in their substantial they gen- briefing. advance

current While presence of counsel

eral assertion that the to test the credibil-

would have enabled them cross-examination,

ity through of witnesses appear to turn on credibili- case does not determinations, corporations point

ty might have specific

to no evidence that been interpretation.

susceptible to a different

Similarly, corporations we fail to see how inability prejudiced by to have

were their closing argu- present opening at

counsel particularly since the commissioner

ments — S.Ct.

39. 424 Id. at U.S. 96 S.Ct. L.Ed.2d (1976). Robinson, Arthur Robinson & Associ- S. Soldotna, ates, Appellant. Nelson, Attorney Gen-

Lance B. Assistant Renkes, eral, Anchorage, Gregg D. At- Juneau, General, Appellee torney State Alaska. Cook, Douglas, Appellee

Gregory F. Chignik Association. Seiners BRYNER, Justice, Before: Chief EASTAUGH, FABE, MATTHEWS, CARPENETI, Justices.

OPINION EASTAUGH, Justice.

I. INTRODUCTION Grunert, Chignik in the Michael fisher Fishery, argues that an Purse Seine Salmon Fisheries creat- Alaska Board of cooperative fishery and allocat- ing Chignik quota salmon to that is ing a grounds scope on it exceeds the invalid authority, with the is inconsistent board’s “fishery” in Limit- definition of the Limit- ed is inconsistent with purpose policy, and is ed Act’s granted superior unconstitutional. The court board, summary judgment favor of the Grunert, summary judgment to denied appeals. complaint. his Grunert dismissed regu- We reverse because we hold fundamentally Lim- at odds with the lation ited Act.1 II. FACTS AND PROCEEDINGS Chignik commercial salmon fisheries, commercial one of Alaska’s oldest dating Chignik the 1880s. The area back to entirely rely almost on commer- communities sockeye cial for them econom- salmon L, encompasses all ic Area which survival. drainages of the coastal waters and inland of Alaska between Kilokak northwest Gulf Point, Kupreanof Chignik is the Rocks and area for commercial salmon administrative fishing. only per- purse seine Since 1974 entry entry per- interim son with a valid En- Fisheries mit issued the Commercial (CFEC) may operate gear in try Commission seq. et 1. AS 16.43.010 purse cooperative fishery taking of resources seine

the commercial season, L.2 of the 2002 there Area. from Area As approximately permit 101 active CFEC were (b) Chignik purse Area CFEC salmon L. holders Area permit seine holders ... form an cooperative fishery annual ... under the Chignik fishery, sockeye like other following conditions: Alaska, experienced has salmon fisheries (1) purse at least 51 CFEC salmon seine difficulty competing with the farmed great must, permit together, apply holders industry years. in recent Unlike salmon commissioner for a to fish as salmon, produced year are farmed which cooperative fishery year; each costs, fresh Alas- round with lower overhead (2) application coopera- an for an annual sockeye can be harvested ka fishery permit tive must be submitted to higher production at during summer months by 1 in April the commissioner or availability foreign The farmed costs. 2002; any year March 1 in after ... a price has caused the of salmon to salmon copy cooperative fishery agreement of a dramatically, resulting significant in decline containing upon the contractual terms Chignik profit gear opera- for net declines cooperative operated which the will be tors. application, must be submitted with the by price decline resulted in a strike including incorporation, corpo- articles of Chignik against Association two Seiners by-laws, partnership agreements, rate or processors local and later caused three mem- other similar documents that contain the propose bers of the Seiners Association to cooperative; contractual terms of the coopera- a that the Board of Fisheries create Chignik Management in tive Area (c) cooperative If an fishery permit annual improve harvesting efficiency to and application qualifications meets the and re- higher quality product. pro- deliver a Their section, quirements of this the commission- posal, Proposal known as stated: “The er, designee, or the commissioner’s will fishing overcapitalized current fleet is and permit.... a issue system competitive harvest does not al- (d) year coopera- For each annual an improvements produc[t] quali- in low for real fishery permit tive is issued under this ty flexibility competing in with farmed section, Chignik cooperative Area fish- Accordingly, Proposal salmon.” 105 asked ery percentage shall be a allocated of Fisheries to amend the Board Chignik sockeye annual Area commercial fifty Administrative Code to allow or more of surplus salmon harvestable based on the Chignik permit the 101 to CFEC holders permit participating number of holders joint fishing form a venture to combine ef- cooperative follows: as proposal joint forts. The called for the fish- (1) participation if cooperative is ery quota representing receive share percent registered less than Chignik equivalent per- to the harvest Chignik purse permit Area CFEC seine centage Chignik permit CFEC holders holders, the allocation to the annual co- venture, participating manage- in the and for operative fishery will be nine-tenths of fishery by Depart- ment of the the Alaska percent surplus one of the harvestable (ADF G) ment of Fish and & to attain Game participant cooperative; for each in the quota. this harvest and ultimately promulgated 5 Alas- board (2) participation if (AAC) (2002), ka Administrative Code 15.359 percent registered or more of the provided part: which in relevant Chignik purse seine Area CFEC (a)The holders, management plan prorat- purpose of the the allocation will be one surplus under this section is to establish the crite- ed share of the harvestable for management participant cooperative. for ria and measures a salm- each 16.43.140(a). (e) by may, emergency summary judgment. moved for The superior The commissioner separate fishing peri- granted court and the order, and close the state’s Seiners open cooperative fishery summary for the Association’s cross-motions ods areas and necessary judgment, co-op regulation open and held (c) statutorily constitutionally established was valid. the allocation achieve superior The allocation this established court’s memorandum decision section. (c) secondary section is sought of this ruled that: the board under advance objectives, harvest escapement legitimate purpose promulgating regu- by may, emergency or- authority by commissioner lation and did not exceed its der, fishing expand opportunity seiners; reduce or establishing quota objec- escapement and harvest regulate ensure improperly does not co- tives. operative corporations; there is no CFEC requirement prohibiting recognition cooperatives; board’s section, (g) In this regulation does not violate article VIII of the (1) fishery” a com- “cooperative means Alaska Constitution. fishery in purse seine salmon mercial which, by agreement participants, (1) appeals, arguing Grunert vessels the number preempted Coop- the Alaska decreasing the intent of reduced Corporations erative Act because AAC expenses with com- overhead associated (2) regulates entity; 15.359 a business the the rate mercial authority did to coop- board not have form a a higher quality achieve harvest to erative that allocates resources be- product; co-op open entry purse tween seine fish- (2) fishery” means “open commercial regulation’s ers because the definition of a purse conducted CFEC seine “cooperative fishery” is inconsistent the with permit participate who do not holders (3) statutory “fishery”; definition of the co- fishery. cooperative op regulation with the is inconsistent Limited Entry Act it because interferes with the Chignik purse permit Seventy-seven seine “present participation” permit active hold- cooperative fishery form a holders elected to (4) ers; co-op regulation violates year regulation first took VIII, article and 17 of sections 3 the Alaska cooperative effect. terms of their Per the Constitution. agreement, eighteen vessels fished on behalf seventy-seven co-op of the members.3 III. DISCUSSION Anderson, and Dean two Michael Grunert A. Standard of Review fishers,' earning Chignik of the higher did not superior We review de novo a cooperative. They participate in the instead summary granting judgment.4 court’s order complaint April filed a superior court validity Because there is no contention of 5 challenging the AAC 15.359. comply Board of failed to The Association intervened on the Fisheries with the Seiners plaintiffs promulgat side of Procedure Act in the state. The moved for Administrative 15.359, ing preliminary injunction, superior presume but the court 5 AAC regu plaintiffs The place denied their motion. then lation is prov- valid and burden of 100,000 salmon, percent eighty-five Chignik cooperative Fewer than would be enti- purse 69,300 holders elected to seine form though tled to take a total of salmon even cooperative fishery Each of the seven- only eighteen seventy- fished on behalf vessels ty-seven individually was members thus contrast, co-op permit seven holders. allocated a surplus share of the harvest of fish 0.9% remaining twenty-four permit holders in the requirements, bringing spawning to open fishery be to take a would entitled total of co-op's remaining total share to The 69.3%. 30,700 only salmon. surplus per- 30.7% of the was allocated to those joined mit fishery. who not holders had State, Dep’t Spotters 4. Alaska Ass’nv. Fish Fish Thus, assuming, example, that the Game, & surplus total harvest for the was 10.15.580, challenging ing party.5 Depart- otherwise on the We which vests in the Alaska regulation long it is uphold Community will as Develop- ment of and Economic “ reasonably necessary with and ‘consistent power cooperatives.13 ment the allow implement authorizing the statutes [its] superior court concluded that the ”6 adoption.’ purport does not to create an unrecognized entity currently or to amend a business rec- Accordingly, we consider first ognized entity in business the state. It also “whether the exceeded its [b]oard require ruled that the does not promulgating regulation, mandate ei cooperative fishery any to form itself into by pursuing impermissible objectives or ther particular type legally recognized busi- by employing powers.”7 means its outside ness. Determining agency’s the extent of an au thority interpretation involves the of statuto challenged co-op regulation requires ry language, uniquely a function within the only copy that a of the contractual terms of competence question courts and cooperative agreement be submitted apply independent judgment.8 our which we application cooperative. with an to form a It Second, we consider whether the not, however, sp'ecify any does substantive arbitrary.9 and not reasonable Where requirements for the contractual -terms re- highly agency in specialized expertise is cooperative’s operation. lated to the volved, judg our we will substitute own Cooperative Corporation Act states ment for the board’s.10 role Our ensure cooperative may organized that “[a] un- agency has taken a “hard look chapter any purpose,”14 der this lawful problems genuinely at the salient and has but does not draw the outer boundaries of engaged in making.”11 reasoned decision authority Department of Com- third, regula And we consider whether the merce Development and Economic or confer any tion conflicts other state statutes or jurisdiction department on the exclusive provisions.12 constitutional create cooperatives. Coopera- The Alaska Corporation tive Act therefore does im- not. Department

B. The of Commerce and pliedly preclude the Board of Fisheries from Development’s Authority Economic adopting regulation authorizing a Cooperative Fishery a To Allow cooperative fishery. a holders form Does Not Preclude the Board from Adopting Regulation Authorizing a Co-Op Regulation C. The Pursues Per- Cooperative the Formation of a Objectives. missible Fishery. argues co-op Grunert first Grunert contends the Board regulatory contrary scheme is authority AS of Fisheries does not have to de- Conservation, Ass’n, 690; Dep’t 5. Lakosh v. Alaska Envtl. 11. Interior Airboat 18 P.3d at of 1111, (Alaska 2002). State, Game, Dep't 49 P.3d 1114 Gilbert v. Fish & Bd. of of Fisheries, 391, (Alaska 1990) (cita 803 P.2d 398 State, 6. omitted). Interior Alaska Airboat Ass'n v. Bd. tions of Game, 686, (Alaska 2001) (quoting 18 P.3d 689 State, Renwick, Bd. Marine Pilots v. 936 P.2d Rue, 88, (Alaska O’Callaghan 95 996 526, (Alaska 1997)). 531 2000). Fisheries, 172, 7. Meier v. Bd. 739 P.2d provides: cooperative may 13. AS 10.15.005 "A . (Alaska 1987) organized any chapter be under this lawful purpose, except puipose banking for the Pipe 8. Tesoro Alaska Petroleum Co. v. Kenai Line furnishing insurance or the of electric or tele- Co., phone service." AS 10.15.580 states: Meier, (citing Kelly [Department Community 739 P.2d at 173 v. Zamarel [of The and Eco- lo, (Alaska 1971)). Development] power nomic has the and au- thority reasonably necessary to this administer Lakosh, Meier, 1114; 49 P.3d at 739 P.2d at chapter efficiently perform and to the duties 174; (Alas Kingery v. Chapple,504 P.2d imposed by chapter. this 1972) ("[T]he ka 'wisdom' of a is not a review.”). added). subject (emphasis 14. AS 10.15.005 order, may, by emergency reduce entry com- missioner into qualifications termine fishing opportunity to ensure es- expand ex- or The board fisheries. mercial salmon objectives.” allo- The promulgating capement and harvest statutory mandate its ceeds inherently based impermissible ob- cation itself is thus pursues if it a subject objectives is pow- but instead outside its conservation employs means jectives or objectives. regulation’s lan- authorizes 16.05.251 to those Alaska Statute ers.15 primary focus is adopt regulations guage that its demonstrates of Fisheries the Board Chig- “regulating com- on the economic circumstances for, things, among other subsistence, fishermen, economic hard- mercial, sport, nik such as those guided sport, prices, by declining salmon ships imposed for the fishing as needed personal use values, rising operating conservation, declining permit utilization of development, and pertain to the to the These concerns do not refers costs. “Conservation” fisheries.”16 stock in the fish- pre- of the salmon Of a resource conservation utilization “controlled ery. argues, or ne- As the board exploitation, destruction its vent management of the fisher- may relates to the facilitate the “Development” glect.” by Department make it avail- of Fish and Game ies “management of a resource fleet. reducing that “the number of vessels have held for use.”18 We able develop re- minor and incidental- duty But this benefit to conserve goals. power ly to allo- to conservation implies a concomitant related sources among competing cate resources however, that increased urges, The board users.”19 efficiency serves a devel- economic language of the co- refers to the partic- The board if purpose. It contends that opment argue that it is consis- regulation itself to op cost-prohibitive, ipation a becomes regula- purposes. authorized tent with longer viable and fish- will no be fishery” as: “cooperative a developed tion defines ery will not at all. resources be efficiency increased economic To the extent fishery in purse seine commercial necessary to the utilization and survival which, participants, by agreement agree that the re fishing vessels the number of objective. regulation pursues permissible decreasing over with the intent duced development apparent focus on economic with commercial expenses head associated not establish that and utilization does rate of harvest fishing and statutory au- regulation exceeded the board’s product.[20] higher quality to achieve thority, prominence the lack of nor does regulation “in- The board contends goal regulating conservation. efficiency of commer- the economic creases option fishing by allowing a lower-cost cial Employs Co-Op Regulation The D. fish, ... increases the harvesting Author- Means the Board’s Outside by providing product quality of the fish ized Powers To Allocate Within rate of harvest.” more controlled Single Fishery. affirmatively co-op regulation does not The broadly argues that the es goals permit- Grunert promote specific conservation statute; is incon authorizing tablishment of ted under the board’s 15.359(e) statutory definition of “fish rather, regu- that sistent with the 5 states AAC Entry Act. The ery” in the Limited “secondary escape- contained lation’s allocation is fishery encompasses Administrative objectives, Chignik and the com- ment and harvest Meier, (quoting Spotters, P.2d at Alaska Fish 18. Id. 739 P.2d at 173. 800). l(a)(12). 16. AS 16.05.25 Meier, (citing Kenai Peninsula 739 P.2d at 174 State, Co-op. Ass'n v. 628 P.2d Fisherman's Ass'n, P.3d at 691 Interior Alaska Airboat (Alaska 1981)). Spotters Dep’t (quoting Ass'n v. Alaska Fish Game, (Alaska Fish & 1992)). 15.359(g)(1). 20. 5 AAC L, Chignik purse Area which includes the River Assuming seines. that a substan- system approximately 110 other salmon- tive co-op fishery difference between gear producing Department open exists,24 streams. The fishery gear presently Fish manages agree Game five districts that argument Grunert’s that use of within the commercial salmon man- gear by the same groups both conflicts with agement escapement goals area so that statutory are “fishery” definition of is now during achieved harvest salmon that moot. We nonetheless consider this issue surplus spawning requirements. are public under the exception interest to the may Chignik fishery Salmon taken may mootness doctrine because there be a only by purse purse seine or continuing dispute hand seine.21 regard to the new gear permitted by the regulation.25 amended “fishery”

The Limited Act defines taking specific as “the commercial of a fish- authorizing statute states that ery specific resource in a “may administrative area board allocate among resources specific type gear.”22 use, with a personal sport, guided sport, board’s and com- statute, authorizing 16.05.251(e),permits mercial fisheries.”26 The board contends board allocate resources that “may” because the use of permissive is use, “among personal sport, guided sport, mandatory, rather than the statute does not and commercial require fisheries.” Grunert con- the board to allocate resources cooperative fishery tends that because the among specified Although fisheries. open fishery gear, statutory use the same language permissive giving impermissibly board has allocated resources respect board discretion with to the initial single homogeneous within a all, commercial decision whether to allocate at it does fishery by shares, assigning quota different specify that the allocation is “among,” to be fishing periods, “within,” different and different fish- not categories the listed of fisheries. ing areas to the groups. two “Among” implies board a construction of subsection .251(e) arguments by asserts that supports Grunert based on argument Grunert’s “fishery” definition of permitted are moot that the allocations must be “be- subsequent because a amendment to the co- tween” the fisheries. imply It does not op regulation now gear any given authorizes different “within” the board types cooperative fishery.23 The board allocate fish. 16.05.251(e) also nothing contends that in AS The allocation factors set out subsection

requires it only among to allocate resources .251(e)’s subparts confirm that the intended fisheries rather than single fishery. within a i.e., “among,” allocation sepa- between the We were informed for the first time at oral repeated- rate fisheries. These factors refer argument ly amended now fishery” to “each and take into consider- permits cooperative unique fishers use leads on ation aspects of each such Ass'n, 21. 5 AAC15.330. Fighters 25. Fairbanks Fire Local 1324 v. Fairbanks, City (Alaska 16.43.990(4) (" '[F]ishery' means the com- 2002) (setting reviewing forth these bases for taking specific fishery mercial specific of a resource in a issue; (1) disputed mooted whether issues are specific type administrative area with a (2) capable repetition, application of whether of however, gear; may designate of the commission may repeatedly mootness doctrine circumvent fishery specific a to include more than one ad- review, (3) presented and whether issues so are area, gear type, fishery ministrative source.”). or re- important public justify to interest as to over- doctrine); riding Mktg. mootness Peninsula Ass’n 917, (Alaska 1991) 15.359(c) (am.3/6/03). (recog- v. 920 23. 5 AAC nizing authority of board to make allocation de- 24. The board amended the after this issue, repeated evading cisions as ease review (and appeal briefing) commenced. The record amendments, by public importance annual and explain practical do not effect of the amend- impact upon fishery of sources). allocation of Alaska’s re- any gear ment and differences. While the use of may give cooperative feeder nets fishers, advantage open over it is not self-evident 16.05.251(e). 26. AS materially that the leads would result in different equipment. 932 Entry with Limited we look to people partici- tent history, the number

as its history legislative purposes. the act’s and it, importance state’s its to the pating in importance providing its economy, and History 1. Limited Act of the opportunities.27 The allocation recreational statehood, to fish- guidance no as to how (cid:127)Before commercial salmon provide factors by large opera- ing in was dominated Alaska or subclassifications sub-fisheries evaluate traps, tors of and fish so much so that fleets allocating purposes resources'within the Alaska Constitution sub- drafters of by that word single “fishery” as is defined banning an fish mitted ordinance commercial 16.43.990(4). addition, note that AS traps Doing to Alaska-wide vote.30 so an CFEC, not the authorized legislature reflected belief Alaska’s the drafters’ board, fishery geographically and to split to belong salmon should to all Alaskans.31 The administrative area.28 create a new consequently proposed also com- drafters Therefore, cooperative fishery and if the provisions mon use Constitu- gear type used the same open tion.32 area to take the the same administrative provisions early These common use caused resource, an allocation of re- same attempts participation limit fisheries cooperative an im- would be sources to The legislature be unconstitutional. deemed single fishery. permissible within allocation attempt one in 1961 when it made such en- authorizing

acted a the Board of Fish statute promulgate regulations tempo- and Game to Regulation Co-op Fundamen- E. The rarily fishing-areas to closing nonresi- salmon tally the Intended Pur- Contradicts yearly proved runs dents when be inade- poses Limited Act. quate to Alaska resident commercial sustain cooperative fishery Assuming the in 1968 attempted fishers.33 A law enacted gear, we open and use different limit gear the issuance of salmon net argument that Grunert’s must still consider registration particular licenses for salmon ar- purpose conflicts persons holding previously eas to either a regu Act. A policy the Limited gear behind license or a commercial license fundamentally invalid if it is during engagement lation years of active three legislative intent under fishing.34 inconsistent with commercial Both of these acts ulti- mately challenges legal equal statute.29 To determine based on lying the faced grounds.35 protection consis- other constitutional whether the (5), (7). (2), 16.05.251(e)(1), developed, yield on the 27. and maintained sustained principle, subject preferences among benefi- 16.43.100(a)(3), .990(1), .990(4). "No cial uses.” Section 15 states: exclusive right special privilege or shall be creat- Game, Dep't 29. 696 v. Alaska Fish & Madison ed or in the natural waters of the authorized 1985) 168, (Alaska (concluding P.2d board's 178 VIII, provides: State.” 17 “Laws Article section "customary regulation interpreting words regulations governing disposal use or legislative in- traditional” was inconsistent with equally apply per- natural shall resources to all law). 1978 subsistence tent behind Alaska's similarly sons situated with reference to the sub- ject purpose to be served law matter and 1025, (Alaska Wright, Brooks v. regulation.” 1999). 62, 33. Ch. SLA 1961. 31. Id. at 1030 n. 31. 186, 34. Ch. SLA 1968. Cmty., Re- Indian Annette Island Metlakatla (Alaska 1961), Egan, serve v. Reetz, F.Supp. grounds, 369 S.Ct. vacated U.S. on other Bozanich vacated, 82, VIII, (D.Alaska 1969), 552, (1962). 191 U.S. 90 S.Ct. 7 562 Article section L.Ed.2d 788, Anderson, (1970); v. 25 68 Brown 3 Constitution states: “Wherever L.Ed.2d of the Alaska 1962) state, fish, wildlife, 96, (D.Alaska (declaring occurring F.Supp. 202 103 in their natural violating people law as for common 1961 to be invalid United States waters are reserved to "Fish, forests, privileges provides: wild- and immunities and use." Section 4 Constitution's clauses, life, grasslands, replenishable as well as Alaska Constitu- and all other re- commerce utilized, clauses). equal process belonging protection tion's and due to the State sources shall be

933 Superior In 1971 the Alaska that legislature Court held One method the used to limit VIII, 15, the 1968 law violated article section entry into the commercial fisheries was re- Constitution, provides Alaska which stricting eligibility permits for under the new right special privilege exclusive “[n]o system. Entry Act, Under the Limited fishery shall be created or authorized in Entry Commercial Fisheries Commission de- waters of the natural State.”36 eligible termines who is to take fish.41 The by CFEC is authorized accept statute to To address the constitutional concerns applications only persons from those “who by superior identified court in 1971 in have harvested resources commer- Norenberg, Legisla Bozanich v. the Alaska cially participating while in the as proposed in ture a constitutional amend gear holders of licenses.”42 legis- When the VIII, language ment to add this to article Act, lature Entry gear enacted the Limited section 15: personal license gear was license and could power This section does not restrict the only presence in fished of the named entry any fishery the State to limit into gear licensee.43 A license could be trans- conservation, purposes of pre resource ferred hardship cases of if origi- among vent economic distress fishermen nal licensee became Only unable fish.44 dependent and those on them for a liveli licenses, gear individuals who had held as promote hood and to develop the efficient opposed partners, to their apply could State.[37] aquaculture ment of entry permits.45 limited Hence even com- approved The voters amendment mercial fishers who were crew members and 1972.38 gear who fished with license holders but who legislature then enacted the Limited did not themselves ineligi- hold licenses were Entry effective as of 1974.39 The stated entry permits ble receive under the new purposes promoting of the Act included “the system.46 limited These features of the lim- yield manage- conservation and the sustained entry system ited reflect an intention that ment of Alaska’s resource and the be, minimum, holders at individuals stability economic health and of commercial actively fishing. who were regulating Alaska and control- ling entry participants Entry and vessels into the The Limited Act also commands the commercial public fisheries interest CFEC to establish a standard for the initial unjust and without entry discrimination.”40 permits.47 pre- issuance of limited To 16.43.260(a). Entry Apoke 36. Commercial Fisheries Comm’n v. 42. AS dak, 1255, (Alaska 1980) (citing 606 P.2d 43. Apoke Commercial Fisheries Comm’n v. Norenberg, v. Civil Case No. 70-389 Bozanich dak, 486, 680 P.2d (Alaska 8, 1971)). Super., Mar. 44. Id. (HCS 37. 1971 Senate Joint Resolution No. 10 Const, 10). VIII, 15; § CSSJR art. State Id.; State, Simpson see also v. Commercial (Alaska 1983) Ostrosky, 667 P.2d Comm'n, (Alas Fisheries ("[T]he inescapable pur- conclusion is 2004) (reaffirming ka that non-licensed fishers authorize, pose of the amendment was to so far past participation points); cannot receive Crivel concerned, as the state constitution is a limited State, (Alaska 2002) lo v. 745-46 entry system.”). (prohibiting partners distributing points from be themselves, partner tween even if one does not points entry need himself to obtain his limited Gordon Scott Constitution. Harrison, Alaska's A (3d ed.1992). permit). Citizen's Guide app. 46. Grunert v. Commercial Fisheries 79, 1,§ 39. Ch. SLA 1973. Comm’n, 118, 119, (Alaska 121-22 1987) (holding operating gear under father’s 40. AS 16.43.010. qualify license while father was ill did not as harvesting fishery commercially resources while See, 16.05.251(a)(ll) e.g., (explicitly deny- holder); participating gear license ing authority board to establish times and dates Ostrosky, 667 P.2d at 1188. entry per- for issuance and transfer of limited mits). 16.43.250(a). discrimination, provisions Entry unjust CFEC is Other in the vent the to Limited regulations emphasize dependence that take into account Act also economic adopt the upon participation. the Act the hardship imposed applicant on ex- and authorizes CFEC, board, entry opti- limited to the clusion from the establish similarly entry permits sit- mum each assign priority classifications for number of following fac- in applicants uated based based on what “will result a rea- average tors: sonable rate of economic return to fishery, participating the fishermen in that (1) upon degree dependence economic of considering necessary in- time fished and including, fishery, when reasonable for gear.”52 in vestments vessels and Another fishery, percentage of income de- determining factor to be considered fishery, reliance on alterna- rived from the optimum entry number is the of “number availability of occupations, tive alternative permits sufficient to avoid serious economic occupations, investment in vessels and hardship currently engaged to those in the gear; fishery, considering opportu- other economic (2) past participation in the fish extent of reasonably nities available to them.”53 ery, including, when reasonable Again, these provisions the Act contem- fishery, years partic the number plate economically dependent individuals ipation consistency in the money actually who invest time and fish- during year.[49] each participation ing. dependence on the recognizing actual fish- participation, ranking eries and these actual repeated participation references to protect actually take fish.50 factors those who dependence throughout En- the Limited try premise Act that a demonstrate central participation Actual also matters when it permit scheme that subsequent comes the issuance limited 16.43.330(a), holder is an who will individual fish. Accord- entry permits. Under AS when ingly, prohibits permit the act from holders permits issued for a number of leasing permits.54 requires their It also crew drops optimum number below established CFEC, members to entry permits presence new fish of a it issues “actively applicants engage actively permit engaged holder in the “presently able to who 16.43.225(e) operation Moreover, fishery.” gear.”55 in the Act Alaska Statute operation requires applicants per- gear persons for interim-use limits with valid entry permits,56 mits for under moratorium estab- defining “person” while as present ability partici- person, excluding corporations, lish “the intent to natural com- firms, pate actively fishery.” During panies, associations, in the partnerships, or- ventures, trusts, societies, period ganizations, joint the establishment of time between entry permits any legal entity the maximum number of other other than a natural permits, person.57 the initial provisions issuance interim-use These reinforce similarly applicants point explained must establish in Johns v. Commercial present ability participate actively “their Entry legisla- Fisheries Commission: “[T]he fishery.”51 initially permits ture intended the number of 16.43.210(a). Apoke v. Commercial Fisheries Comm'n 51. AS dak, (Alaska 1980); State, Temple Commercial Fisheries ton, Comm'n 16.43.290(1). 52. AS 16.43.290(3). 53. AS 16.43.250(l)-(2). 49. AS 16.43.150(g)(1). 54. AS v. Alaska Commercial Fisheries Younker Comm’n, (Alaska 1979) (de- 16.43.140(b). 55. AS clining preparatory fish consider efforts to past "past participation participation co- because 16.43.140(a). 56. AS legislative hardship incides with the view according taking measured to the actual of fish past”). 16.43.990(7). issued to reflect actual use.... ‘The Act was argument The board’s co- op regulation designed prevent itself does not protect co-op to the reliance interests of fishers from participating actively is also un- using fishery all individuals as well as ”58 persuasive. every co-op If fisher decided to aiding dependent fishermen.’ fish, the goals regulation- stated reducing overhead costs improving fish fishery 2. The quality through harvesting controlled —would defeated, coopera- and it would be as if no argues nothing The board Lim- tive Integral existed. to the co-op regulation explicitly requires par- ited Act active an assumption practice that in every not ticipation fishery by Chignik co-op fish, co-op individual member will as demon- example, fishers. For it contends that al- strated in only eighteen 2002 when vessels 16.43.140(a) though requires gear opera- AS seventy-seven fished on behalf of the mem- holders, permit tors to be the statute does cooperative. bers of the regula- Because the require permit op- not holders themselves to tion co-op allows members to benefit and gear. respect requir- erate to With statutes receive remuneration from the with- ing applicants transferees and interim use out actual participation, actually it discourag- “present ability demonstrate a participate participation. es active actively fishery,” in the argues the board system co-op The possible makes it for “ability” participate differs from actual permit gear holders without or vessels to participation.59 behalf, have someone else fish on their leav- ing pursue them free to occupations. other provisions To read restrictively, these so A co-op, member of the example, theoret- however, permit requirements is to read ically indirectly can holding “fish” while down though they completely are divorced from job sitting an office at home because the permits Participation by themselves. co-op allows another member to individual is inherent entry the limited fish the quota absentee member’s entire system. permit Chignik cooperative him or her. fisher in this scenario fundamentally scheme is at odds with sharply diverges from the model of the eco- premise this it people because allows who are nomically dependent fisher whom the Limit- actually fishing to benefit from the fish- ed Act protect.60 was intended to ery resource. That frequently the statutes fact, many economically dependent fishers “ability” refer to participate ac- may greater suffer economic distress as tively in the rather than partic- actual cooperative fishery. result of the Crew ipation unexpected is not because transferees members, depend permit who on holders for permit and interim applicants use cannot ac- employment, would also lose income because tually participate permits in the until cooperative fishery requires fewer ves- are fact issued. sels and fewer crew to take fish.61 Comm’n, 15.359(g)(1) (referring Johns v. Commercial Fisheries 61.5 AAC to reduction of (Alaska 1988) (quoting Rut number of vessels and decrease in overhead ex- (Alaska 1983)). ter v. penses fishing). associated with commercial To the extent the reduces the number of 16.43.170(b); 16.43.210(a). 59. AS fished, permits actually CFEC it also inter- ability fere with the CFEC's to determine the 16.43.250(a)(1) (measuring economic de- optimum permits per fisheiy, number of which is pendence by "percentage of income derived from partly spent fishing based on time and invest- occupations, reliance on alternative gear. ment in vessels and AS 16.43.290. Be- availability occupations, of alternative invest- (estab- co-op regulation any cause gear”); allows ment in vessels and number of AS 16.43.290 lishing permit optimum permits number holders to based on fish behalf of other average "reasonable rate of cooperative, destroys any economic return to holders in the it rela- participating fisheiy, the fishermen in that con- permits per tion between the number of issued sidering necessaiy time fished and investments in fisheiy participating and the ultimate number of gear” vessels and avoidance "serious eco- gear. vessels and units of hardship currently engaged nomic to those fisheiy, considering opportuni- other economic them”). reasonably ties available to mary judgment and REMAND working assumption since be- the board oper- proceedings individuals for further consistent this has been that a state came opinion. fisheries. commercial salmon ate Alaska’s co-op regulation in contrast transforms

The to entry permit from what used the limited CARPENETI, Justice, dissenting. gear into a mere owner- personal license be a cooperative organization. an of in a As Faced with economic crisis historic ship share if argument, Chignik conceded at oral the commercial salm- parties proportions the regulatory this fishery,1 Fisheries can create the acted Board of Board of Fisheries to Chignik fishery, it can do the for the provide scheme relief. Under its broad every in Alas- thing for authority, regulation same salmon the board enacted al- regulatory accom- this scheme cooperative ka. Before lowing the of a establishment his- from the plishes departure such radical great majority Chignik fishery. fish- entry fisheries in model of limited torical joined. upheld superior court the ers Entry spirit the Limited regulation challenge. against But board’s however, Act, legisla- the we conclude that today’s Opinion, the misinterpreting statute ap- the board to must first authorize ture authorizing looking to regulation, fisheries.62 prove cooperative salmon wrong regulation’s statute to assess the con- statute, sistency and ig- with its might that legislature well conclude it requires law noring the deference our case Entry necessary to amend the Limited Act is agency’s expertise, afford to an us to strikes fisheries, allow the creation of regulation. respectfully I dissent. down CFEC, by by if not perhaps the board upon purposes same relied advance the Today’s Opinion the Board holds that 5 AAC 15.359. promulgating in the board regulation language Fisheries’ exceeds so, we yet it done must But because has not (Part III.D.) statutory authority the board’s invalid. hold that the Entry Limited and conflicts Act’s IV. CONCLUSION (Part purposes statutory provisions and III. E.). superior I with both would affirm the court’s Because 5 AAC 15.359 conflicts holdings of “fish- within its definition board acted stat- the Limited Act’s utory authority ery” purposes, need not reach its and stated and did directly RE- Limited constitutional claims. We not conflict with the Grunert’s superior grant of sum- Act.2 court’s VERSE (Alaska happen nothing Baldridge will done? What if ("[The 1963) regula- Chignik Bay, Chignik Lagoon, Chignik Game's] Board of and Fish Lake, residents, harmony Perryville, Bay be valid must in and in tion to Ivanoff and legisla- policy by the conflict with the established all will continue to fishermen en- ture.”). hardships dure severe economic income fishing salmon decline from continues to due problems facing Chignik ever-increasing poor prices operating fishers were set 1.The and in these expenses. out to the Board of Fisheries terms: entry permits 2. Limited will continue their Problem: The downturn in the substantial exodus from interests. rural to urban past decade has re- salmon market over the plummet. values 3. Permit will continue drastically operat- fishing while duced income Safety compromised will be as fishermen every ing expenses increase have continued to try greater are forced to risks to take Fuel, expenses year. grocery, and insurance living inexperienced amake and to hire crew at or inflation rates over have increased above members members because no crew are years prices past have tire ten while salmon available. they what were declined to less than 50% Fisheries, Chignik Proposal 105 to the Board of just ago. over a decade The current Management Area Salmon Plan. overcapitalized competitive fleet is and system real im- harvest allow for does not I believe survives 2. Because Gru- flexibility provements produce quality in or challenges exceeded nert's that its enactment competing foreign with farmed salmon statutory authority board's and conflicts with the prices domestic markets. The lower drop, pronounced problems I would reach his constitu- Limited more these challenges. become. tional authority

I. The Board Acted Its Author- regula- Within AS 16.05.251to enact Adopting Regula- ized concerning Powers tions sixteen types enumerated issues, including, tion. example: establishing open areas; and closed seasons setting party challenging regulation A bears the limits; quotas bag “establishing showing adoption regu- burden employed means and pursuit, methods adopting agen- lation is inconsistent with the capture, transport of fish.” Most rele- cy’s controlling presume statute.3 We that a here, legislature vant in AS regulation promulgated in accordance with 16.05.251(a)(12)granted power the board the valid,4 the Administrative Procedure Act is “commercial, regulate to sport, guided sport, uphold regulation long and we will the so as subsistence, personal and use reasonably it is with “consistent and neces- conservation, needed for development the sary implement authorizing the statutes and utilization of fisheries.”9 adoption” and it is and not [its] “reasonable arbitrary.”5 today’s Because Grunert does not Part Opinion correctly III.C. of regulation question rejects claim that the argument this Grunert’s the case, 15.359, promulgated regulation pursues objectives 5 AAC was not permitted not APA, doing, accordance the Grunert bears the statute. In so it concludes that the showing regulation that it properly burden is inconsistent with “development” concerns the Fish and Game Code or is unreasonable and “utilization” of the resource. IWhile arbitrary. and regulation believe that this also serves “con- objectives,10 servation” I agree otherwise governed by The Board of Fisheries is portion Opinion. with this of the Code, 2 Article of the Fish and Game AS legislature However, 16.05. The created the board for Opinion Part III.D. of the mis- general purposes the takenly accepts of “the conservation argument Grunert’s that the development fishery and the resources of nonetheless exceeds the board’s the state.”6 In authority. Opinion Kenai Peninsula Fisher is based on a narrow State,7 16.05.251(e)(an Cooperative reading man’s Association v. pro- AS allocation vision) determining that “conservation” interpretation and “devel and an incorrect opment” regulate statutory allowed board to uti “fishery.” definition of the term lization of among resources various user 16.05.251(e) provides Alaska Statute groups, we held that “conservation laws such board, regulating permitted when a sub- game liberally as fish and laws should be ject, “may fishery allocate among resources pur construed to achieve their intended use, personal sport, guided sport, and com- pose.” Opinion mercial fisheries.” Because con-

Following our decision Kenai Peninsu- Chignik purse cludes that the entire seine la, legislature broadly granted fishery cooperative the board competitive — agency adopted regulations 3. "When an has un- 9. See at id. 902-03 & n. 9. delegation authority legislature ader from the using process prescribed by the Adminis- imply 10. We have defined "conserv[ation]” presume regu- trative Procedure prevent "controlled utilization of a resource to its place proving lations are valid and the burden of exploitation, neglect.” destruction or Interior challenging party.” otherwise on the v. Lakosh Alaska, (citation omitted). at P.3d Conservation, Dep't Envtl. designed part was in no small to im- (Alaska 2002). prove quality being brought of fish to market. previous competitive system, Under the harvest Id. quality compromised by profit such was time and 5. Interior Alaska Airboat Ass'n Bd. caused, pressures, among things, which other Game, (Alaska 2001) (cita- 689-90 improper handling. attempt and excessive omitted). tions remedy through quality regu- such decline prevent lation a was therefore measure to 16.05.221(a). "exploitation, neglect” destruction or of a short, pur- resource. it served a conservation In 7. 628 P.2d 897 pose. 8. Id. at 903. gear.”12 sport Sport guided a fisheries and single included —constitutes

fishers type definition, sport “gear” same it strikes fisheries use the under 16.05.251(e) (hook line) reading have different economic but regulation, down the fisheries, purposes. light of the liberal but In construction permit “between” allocations statutes, a fishery. given to such difference single This conclusion these a “within” striking should be to avoid down misguided for several reasons. sufficient a based on definition. First, Opinion’s premise the “co- —that Second, accepting the notion that the fishery” “competitive fish- even operative competitive fish- ery” separate cannot constitute fisheries—-is Code, ery Opinion’s Fish and constitute one clearly wrong. The Game statute, permitted regarding conclusion allocation defines board’s weight much “fishery” specific places area in incorrect. It too as “a administrative preposition specific questionable is taken definition resource which 16.05.251(e). In gear.”11 fitting “among” reading type of in AS specific with a majori- “among” single fishery, allocations “between” groups both into fisheries, single fishery, a ty fact —raised in state’s but not “within” ignores the the Opinion “among” has the conflates the terms and briefing to this court —that the board a passed regulation permitting a “between.” Yet there is distinction be- subsequently gear expresses to use of tween these two words: “Between types the fishers competitive many things, fishers. one-to-one relations of and otherwise denied Thus, among groups expresses two access to collective undefined re- because the have 13 Thus, easily ap- differing types gear, language of the lations.” while “between” would parently preclude the conclusion that these are different allocations to accommodates (i.e., fishery two members of the same “within” a fisheries. fishery), “among” possibly could to a lead Moreover, ignoring subsequent even the legislature have different result. The could regulation, in operation the differences be- provision, the in this used “between” word fishery” “cooperative tween the it did but not. fishery” “competitive qualify are sufficient to gear.” regulation reading This conflicts with “types as of also our case different fishery” previously law. held that “cooperative “a commer- We have the board defined which, fishery possesses powers. cial allocation purse in broad Before seine agreement participants, provision, was allocation of the the number of there we may regulate in- fishing be reduced with the allowed the board to utilization vessels decreasing fishery “by of expenses tent of overhead associ- resources various user Later, groups.”14 upheld regulation we ated with commercial quali- allocating competing “two higher rate of harvest to achieve a resources between ty product.” subgroups users.”15 complains While Grunert that of commercial We have specifically rejected a lower in- distinguishing trait relates to busi- also court’s 16.05.251(e) terpretation prohibit- tangible gear, ness and not to of AS structure (that is, intra-group definition of is not restrictive. ed allocations between so fisheries), stating “[T]ype gear” broadly is defined and in- two or more commercial use, cludes, ‘among personal by way example, phrase that “[t]he such subclassifica- fishing’ “sport gear guided sport, and does on its tions as that between commercial not 16.05.940(14)(B). 16.05.940(14). While this es- definition is "fishery" sentially same as the definition Bryan Dictionary A. A Legal Garner, Modern Act, Opinion in the Limited errs in (1987). at Usage referring solely to the Limited Act's defini- argument solely was tion. If Grunert's based Coop. 14. Kenai Fisherman’s Ass'n v. Peninsula it is would that Act's definition—which not—he State, (Alaska 1981). required to show that Fisheries, just "direct conflict” with the that it is 15. Meier v. Bd. II. inconsistent. See Part infra Today’s any any ginal Opinion fishers. conflicts with intent to exclude sub- face indicate both these intra-commercial phrase, such as sets propositions.24 allocations.”16 Finally, single fishery allocations within a the board peals fisheries lation adopted the classes of created two “superexclusive” er erwise Moreover, “superexclusive” present case. provided effectively similarly within the same within a upholding “superexclusive” herring sac roe we have reasoning that a allocate situated commercial discriminated between single management In State v. just person board resources previously held that season.19 of the court could not fish anoth- as the board did or a nonexclusive who fished one Hebert,17 within herring regu- sub- area oth- ap- incongruous been within the board’s ing guage precludes allocations “within” a fish- the board acted within its sions er to ery, elected, are equal-share Chignik, and such an allocation would have court For all of these where other already set pointed governing regulation. quotas, quota system to hold that example, authorized under other out already provisions, below, reasons, board. the board could have allows authority simply impose authority.25 for each seiner in I would hold that such as the As it. “among” superior adopt- provi- pow- It lan- an fishers in the same administrative area based II. As the Limited Act Is Not the herring operation, on the size of the with Controlling for the Board of Statute “superexclusive” favoring oper- areas smaller Fisheries, Proper Test Is Whether goals passing One board’s Directly Regulation Conflicts ators.20 Act; Not, this was “to alleviate local econom- Because It Does Regulation the ic distress.”21 We concluded that board Is Valid. authority passing this acted within its incorrectly Opinion, assuming The Additionally, we held it to be Entry controlling Limited Act is the statute

regulation.22 Hebert, consequently, constitutional.23 Fisheries, that the Board concludes the propositions stands for two relevant to this regulation purposes is inconsistent with the First, may case. the board make resource provisions Entry But of the Limited Act. (same single fishery within a ad- allocations Entry because the Limited Act is not the area, resource, statute, ministrative same controlling proper question is the Second, gear). regulation directly same the make board whether the conflicts with economically directly an allocation to mar- it. Because it does not conflict with such assist Mktg. 16. Peninsula Ass'n v. 23. Id. at 865-67. 1991). (Alaska 920-22 similarity 24. is an additional factual be- There co-op regulation regulation tween the 17. 803 P.2d co-op regulation expressly prohibits Hebert. The any participating any co-op member from Hebert, (Alaska App. 18. State 743 P.2d 392 of Area June 1 to outside L from 1987). 15.359(b)(6). year. August 31 of each 5 AAC operation This restriction resembles the of the "superexclusive'' 19. 803 P.2d at 864. Hebert fisheries—while those are fa- who benefit from treated area, vorably they within a certain are also re- regulation pro- 20. Id. at 869. Because the fishing stricted from in all other areas. The person superex- hibited a from in both membership co-op, decline in the fishers who contrast, clusive and a nonexclusive the board permits remain free to use to simulta- reasoned that there would be insufficient incen- neously fishing operations ar- conduct in other larger fishing operate tive for boats to within the eas. superexclusive areas boats would while smaller superexclusive be able to thrive in the areas proposition, support cited 25. of this the court competition larger absent from boats. Id. at 869. 28.170(f) (imposing 5 AAC individual annual equal-share amount limit for commercial sablef- at Id. Alaska). of Eastern Gulf of ish in subdistricts explicitly impose quo- The board is authorized tas, 16.05.251(a)(3). among things, by 22. See id. other AS Act, by usurped that the CFEC’s ex- the board Entry I would not invalidate the Limited authority setting or by the terms fees press regulation. entry permits. Grunert for interim-use with the observation Opinion begins The conflict showing of direct cannot make such if it may be invalid is “regulation that a in this case. legisla- with the fundamentally inconsistent incorrectly suggests that a Opinion controlling stat- The underlying its intent tive regulation and the between the legal proposition. conflict exists with this agree I ute.” Entry Act. Not purposes of the Limited unspoken disagree with the draft’s But I co-op regulation consistent with the Entry Act Limited is assumption that the Act, actually two of furthers regulation at issue controlling statute. Fisheries, purposes— purposes.29 its three One of by Board of adopted was stability of the commer- 16.05. The economic health controlling statute is AS whose strongly by reg- Act, cial enhanced which established the Entry Limited —is purpose ulation.30 A second Fisheries Commis- Alaska Commercial —conservation— degree.31 A third (CFEC), is enhanced to a lesser in AS Because is found sion yield affected. purpose Entry Act is not the board’s Limited —is —sustained co-op that statute, It therefore cannot be said Opinion misstates any purposes conflicts with showing. In order to strike down required statute, Entry Act. raora-controlling behind the Limited on a regulation based here, court must find the case as is the Opinion is to take the approach in “direct conflict” with regulation to be qualifying factors for Limited Act’s statute.27 permitting process and to trans- the CFEC’s Board of Moreover, height- them into restrictions on the burden is form this onerous approach problematic This be- statutory schemes in this Fisheries. specific ened cause, above, explicitly above, the Act grants the as indicated AS 16.05 case. As noted provisions 'not limit the pow- that its shall and extensive states Board of Fisheries broad Moreover, Opin- powers the board.32 ers, interpreted expansively.28 we have which identify any actual conflict with ion fails to pains provide legislature took 16.43.950, qualifying factors. The the CFEC’s Limited upon regulation simply does not intrude chapter power “[njothing in this limits of added.) authority. regula- regulatory (Emphasis CFEC’s the Board Fisheries.” of permit- grants permits tion nor alters that a neither language suggests This change require- ting rules. It does not the be invalidated the board could never Entry all members of ment that all fishers —and grounds conflict with the Limited permits. or, could, any co-op properly Act; the conflict obtain CFEC if it that would — Indeed, example, the record reflects that each member a need to be severe —for fishing stability Dep't of commercial Citing Fish & nomic health Madison v. Alaska Game, 168, (Alaska 1985) controlling entry (setting by regulating and in Alaska participants fish- showing stat- and vessels into the commercial required under forth unjust ute). public eries in the interest and without 16.43.010(a). AS discrimination.” Anderson, (Alas- v. 749 P.2d State example, study by 1988). a the McDo- 30. For conducted ka process Group during the administrative well (1) cooperative that a would concluded 16.05.251(a); Fisher- Kenai Peninsula See sockeye by harvest reduce the costs of Coop. v. man's Ass'n (2) average eighty percent, increase the net in- interpretation in- Our broad by average per permit of one- come holder an above, cludes, holding our in State as discussed (3) forty percent, the overall hundred increase Hebert, (Alaska 1990), which harvest, (4) quality enhance the mar- to the upheld regulation very to the similar in effect sockeye. Chignik value ket regulation at issue here. supra note 10. 31. See chapter promote purpose 29. "It is the of this yield manage- and the sustained conservation eco- 32. AS 16.43.950. resource and the ment of Alaska's co-op, joining co-op, cooperative profit had will before from the ar- successfully through rangement “holding passed job the CFEC’s while down an office process. Similarly, nothing sitting Opinion in or at qualification prefers home.” The Entry prohibits cooperative Act in only the Limited wasteful state affairs which a few joint venture efforts. To the ex- fishers do than or better break even and the incidentally producing product tent that the structure will cost of an inferior is un- marketplace necessarily high. Similarly, affect business its concern with (in point problem at some unknown stating free-rider that future, cooperative “actually remains free to in- discourages par- CFEC active “optimum” ticipation”) crease or decrease the herring. Participation number is a red permits fishery.33 Any hypothetical, cooperative in that simply within the a mat- becomes seriously incidental economic effect cannot agreement. cooper- ter of contractual As the indicate, bylaws considered “direct conflict” with the ative’s each member shares jurisdiction.34 proceeds, CFEC’s leftover but those who contract cooperative actually with the fish will be Opinion heavily argu- relies on the compensated for that extra labor. con- cooperative approach ment that is dif- problem, trast free-rider the individual it ferent from what sees as the former com- cooperative mutually members of the will petitive implies only model. It determine how their resources can be used competitive Lim- model is authorized effectively. most Entry plainly Act. But that ited not the case. The Act Limited was drafted Opinion cooper- also contends that the to make certain that those admitted into the “may greater ative members suffer economic system actually were individuals economical- distress as a result of the fish- ly dependent upon who had ery,” putting hypothetical forth a scenario to past, ability fished and who had the only that effect. Not is such a consideration requirements to fish. All of having these inapposite question to the of whether the met, been permits. CFEC issued There regulation is in direct conflict with the Limit- suggestion, is no En- either the Limited improper ed given it is also our try Code, Act or the Fish and Game highly standard of special- review. Where standards, the Limited Act’s used to involved, agency expertise ized we will not fisheries, entry determine into limited con- judgment substitute our own power meeting strain the of the board in board’s.35 Our role is to ensure developing crises Alaska’s fisheries. agency has taken a “hard look at the salient Finally, policy problems genuinely other concerns engaged raised and has in rea- Opinion improper overly making.”36 seem static. It soned decision If the board con- regulation’s efficiency uses procedures economic cluded after full administrative argument against an example, co-op regulations improve it —for in com- would plaining though that even economics of the it did —as higher quality product will second-guess obtain for a here —we should not that con- labor, hypothesize opposite fraction of the cost and some members clusion and result. that, power noting although 33. See AS 16.43.300. This of the CFEC 34. It is also worth Grunert complains jurisdiction being Opinion’s that the CFEC’s erases the concern that the upon, complaint intruded we have heard no from permitting requirements interferes with such regarding regulation. the CFEC itself applicant being "presently engage able to 16.43.330(a). actively fishery.” De Conservation, Dep’t (Alaska 35. Lakosh v. Alaska Envtl. spite regulation, the CFEC remains free to 1111, 2002); State, 49 P.3d Meier v. permits only people issue those best who meet Fisheries, 172, (Alaska 1987); Bd. (All qualifications. cooper their members of the (Alaska Kingery Chappie, v. qualifications.) ative here have met these addition, 1972) (”[T]he ‘wisdom’ of is not Opinion’s suggestion that the cumu review.”). subject of permitting requirements lative effect of the re quires actually each holder to is with Interior Ass’n v. Bd. Alaska Airboat fish Game, statutory support out and defies common sense. sought protect the also to the competitive fishers interests of where the In instances practicable.

extent eighty- than co-op is less

membership of the fishers, permitted percent

five sockeye co-op is 0.9% to the

allocation co-op.37 permit holder within per

harvest presented such an this case

The facts of fishers, result, As a

instance. seventy-seven per-

though they represented fishers, were allocated permitted

cent In con- sixty-nine percent of the fish. (twenty-three

trast, competitive fishers fishers) allocated total were

percent of the higher of the fish'—-a aver-

thirty-one percent

age per individual. allocation reasons, respectfully I dis- all these

For regulation valid as

sent. I would find authority under its con-

within the board’s in direct conflict with

trolling statute and not Entry Act.

the Limited CHASE, Appellant,

Ernest M.

Judy Appellee. CHASE, A.

No. S-11447.

Supreme of Alaska. Court

April 15.359(d).

37. 5 AAC

Case Details

Case Name: Grunert v. State

Court Name: Alaska Supreme Court

Date Published: Mar 17, 2005

Citation: 109 P.3d 924

Docket Number: S-10841

Court Abbreviation: Alaska