McDowell v. State, 785 P.2d 1

McDowell v. State

785 P.2d 1

Alaska

1989

Check Treatment

*1 McDOWELL, E. Dale E. Bondu Sam

rant, Ronald Mahle Harold Eastwood, Appellants, Ross, Jacobus, Gingras, Bailey Cheri C. Miner, P.C., Anchorage, appellants. for & Alaska, Department Alaska STATE Gen., Larri Spengler, Atty. Irene Asst. Game, Fish and Board Alaska of Fish Schaible, Gen., Berg Atty. Juneau, Grace eries, Alaska Game and Board of Don appellees. Collinsworth, W. Commissioner Fish Mitchell, Craig Anchorage, Donald Game, Appellees, intervenors/appellees. Natives, Federation of Protec C.J., MATTHEWS, Before tors of the Land Numan Kitlut d/b/a RABINOWITZ, BURKE, COMPTON sisti, Tony Charley, Vaska and Walter MOORE, JJ. per on behalf of all himself and other situated, similarly sons Inter

venors/Appellees. OPINION

No. S-2732. MATTHEWS, Chief Justice.

Supreme Court Alaska. INTRODUCTION Dec. 1989. chapter This case challenges 52 SLA Rehearing 2, 1990. Denied March grants preference 1986 which to rural to take fish and for subsist- purposes. requirement ence to be bymet a subsistence fisherman or hunter residency in a rural area of the state. preference challenged The rural under provisions several of the Alaska Constitu- clause, VIII, tion: common use article 3; section the no clause, VIII, 15; article section the uniform VIII, clause, 17; application article section I, equal rights clause, 1; article clause, I, process and the due article sec- addition, violation protection process and due clauses of the States is claimed. For United Constitution follow, reasons hold we that the rural violates article sec- 3, 15 and Alaska Constitu- tions 17 of the tion.

FACTUAL AND PROCEDURAL SETTING The 1986act1 defines subsistence hunting as which can be un- activities only “by a domiciled in a dertaken resident ” area of the Subsistence state.... reference, chapter For ease of section of the where that act citations ate Alaska Statutes opinion appropri- be to the SLA 1986 this will is codified. *2 the re- consumptive uses of residency for other terms of uses are also defined portion. mainder of harvestable in rural areas: the noncom- uses” means “Subsistence 16.05.258(c). portion If the harvestable AS mercial, customary traditional uses and to population a stock is insufficient or by a wild, resi- renewable resources needs, non-sub- satisfy all all subsistence area of state dent a rural domiciled barred, Boards are and the sistence uses consumption family personal or for direct required distinguish among subsist- are to fuel, tools, shelter, clothing, food, or as “(1) applying users criteria: ence three making and sell- transportation, for dependence customary and direct articles out non-edi- ing of handicraft population the main- game fish stock or as wildlife of fish and re- by-products ble livelihood; (2) residency; and stay of local family personal or con- for sources taken (3) resources.” availability of alternative customary trade, for the sumption, and Id. barter, for or sharing personal family or brought a chal- This in 1983 as case was consumption. statute, chap- lenge to the 1978 subsistence 16.05.940(30). A “rural area” is defined AS The ter 4 SLA community the state in as “a or area of hunt- statute established subsistence noncommercial, customary, which the and ing fishing priority and had other uses over game personal or for traditional use of fish game of fish stocks. Like the 1986 family consumption principal or a charac- statute, provided for two of subsist- tiers economy community teristic of the In the first were those ence users. tier 16.05.940(25). or area.” AS game could for who take fish subsist- Appellants are Alaska residents who purposes populations ade- ence when were engaged have subsistence and quate satisfy all needs. The subsistence fishing past in the wish to continue to tier limited to could second was those who act, they do so. the 1986 Under dis- pur- game take fish and subsistence qualified they because as subsistence users poses populations inadequate when were non-rural by reside areas classified as' supply all The 1978 subsistence needs. joint Boards Fisheries and Game. distinguished statute second tier of Appellants McDowell and Mahle reside in subsistence users from the first tier on the Cooper Anchorage, Bondurant resides basis of three utilized in the same factors Landing, Eastwood in the com- resides statute, namely, customary the 1986 McKinley munity of Park. dependence, residency, direct local availability of alternative resources. Id. requires The 1986 act the Board Fish- However, statute, the unlike the 1986 eries and the Board of to decide Game residency a impose statute did rural portion what of each fish stock and becoming requirement a condition to as population can be harvested consistent with user. first-tier principle yield. of sustained Next much of Boards must determine how appellants’ complaint initial chal- portion satisfy needed to harvestable lenged priority the second-tier subsistence por- If harvestable subsistence needs. The complaint of the 1978 statute. population tion of stock or is not suffi- expand times to amended several consumptive all cient accommodate uses original theory challenges and add to vari- use, —sport, personal and commercial— regulations. parties ous All mo- submitted uses then subsistence summary judgment. superior tions granted shall be accorded a over other court some of motions and uses, regulations Be- consumptive deferred others on October provide opportunity fore the shall reasonable deferred motions could be ruled on, If satisfy subsistence uses. the har- decided court Madison Alaska Game, portion Department is sufficient to accommo- vestable Fish down, 1985), of the stock date the subsistence uses which struck statute, may provide population, then the Boards inconsistent with the 1978 subsist- decision, the Madison imposed a After this court’s regulations which ence state Interior notified the Secretary of the on first-tier residency requirement longer no consistent state law was at 178. Id. users. manage federal and that with ANILCA *3 the significance event The next consistency was begin unless ment would 1986, chapter 52 in 1986 of SLA passage 1, by 1986. Kenaitze Indi achieved June noted, which, provides only rural as Alaska, 860 F.2d an Tribe v. State of sub- can be first- or second-tier — (9th Cir.1988), denied, U.S. cert. Following passage of this users. sistence -, 3187, 105 L.Ed.2d 695 act, again appellants amended act, (1989). passage of the 1986 With the complaint, challenging the rural Department has stated that the Interior appel- grounds. Both on constitutional again compliance in Alaska is once summary and the state moved for lants ANILCA. Id. granted the superior court judgment. by judgment was entered motion After final and denied the motion of state court, the 9th Court of superior Circuit Judgment was entered appellants. the definition of “rural” Appeals ruled that ruling. this on the basis of comply with 3113 in the 1986 act does not § not be setting of this case would “Rural,” ANILCA. Id. 860 F.2d at 318. the Alaska complete without mention of court, ANILCA, refers according in to the Act Interest Lands Conservation National areas; populated” “rural “sparsely to (ANILCA), by Congress 1980.2 enacted includes all ar- antonym of urban and requires that on 3114 of this act Section partic- cities and towns of a eas between Alaska, public lands in subsistence federal re- at 316-17. The court ular size.” Id. the tak- given priority are to over uses be under Bureau standards ferred Census purposes. ing of fish and wildlife for other population which “the urban consists ANILCA, only rural Alaska resi- Under 2,500 or people living communities priority.3 a subsistence dents are entitled to more, population comprises while the rural requires management of ANILCA federal Thus, everyone else.” Id. at 317. the 1986 in Alaska in order to ensure public lands definition was act’s subsistence-oriented However, feder- priority.4 the subsistence ANILCA. held inconsistent with supplanted management al Eastwood both reside imple- Bondurant and long as the state enacts and state so interpreted as Kenaitze has are consist- rural areas ments laws “which subsistence They term. use of that with, provide for the defini- ANILCA’s ent and which injunctive relief specified probably thus entitled tion, participation preference, ANILCA, 3117(a).6 16 U.S.C.A. under in” § ANILCA.5 (West 1985). 16 U.S.C.A. defines § § ANILCA §§ 2. 16 U.S.C.A. 3101-3233 in ANILCA "subsistence uses” as used the term mean states: § U.S.C.A. § 3. ANILCA customary and traditional uses provided Except in this Act as otherwise wild, resources residents of renewable laws, taking public and other Federal consumption family personal direct or for food, for nonwasteful of fish and wildlife lands tools, shelter, fuel, transpor- clothing, or priority be accorded subsistence uses shall tation; selling making of handi- for the taking on such lands of fish and over the byproducts of craft articles out of nonedible purposes. Whenever it is wildlife for other personal taken for fish and wildlife resources taking populations necessary to restrict the barter, sharing family consumption; for or such lands for subsist- of fish and wildlife on consumption; personal family and for protect the continued in order to ence uses customary trade. viability populations, continue of such or to added.) (Emphasis uses, implemented priority shall be such through appropriate such limitations based 3115(c). § 4. 16 U.S.C.A. following application criteria: (1) customary dependence and direct 3115(d). U.S.C.A. § 5. 16 livelihood; mainstay populations as the (2) residency; and local case, requested (3) relief has not been availability 6. Such of alternative resources. 3117(a) remedy question added). § whether the and the (Emphasis Affairs Interior and Insular determined However, does not the Kenaitze decision that: presented appeal in this change issues fully ap- testimony 1986 statute remains After consideration

because hearings town subcommittee’s plicable to all non-federal'lands. throughout Alaska review meetings federal, variety of studies done Purpose Background state, academic, agencies and and other 1986 Statute groups, has the Committee no doubt residents could en- Prior to urban importance of uses about the fishing. gage in of Alaska. Reliable the rural *4 However, statutory prefer- there was no given to the evidence was Committee sport or given to subsistence over ence demonstrating fifty percent that the fishing sport hunting. With commercial three-quarters food of the Native for chapter the 151 SLA enactment in Alaska's small and medium families hunting given and subsistence through villages acquired is subsistence Madison, at 174 priority. such a uses, percent of such and 40 families n. did urban 12. The 1978 statute not bar spend average an of 6 to 7 months of the eligibility as first-tier sub- residents from year in subsistence activities.... Madison, P.2d at 176. sistence users. Sess., Cong., H.R.Rep. No. 95th 2d However, by the regulation adopted a (1978). appeal The intervenors this did urban Fish and Game exclude Board of purpose similarly expressed the of the ru- AAC 01.597. held residents. 5 Madison preference ral as follows: regulation violated the stat- that this village game If access to fish and ute. Id. by competition from the overwhelmed Representa- House the Alaska sportsmen tens of thousands of who ac- adopted a letter of intent which tives wealth Alaska’s fortuitous oil has drawn that became the 1986 companied bill centers, the urban effect on the act. 1985 House subsistence Journal adverse, village economy rural would be explained The letter rural health the effect on the and welfare ' act as follows: of rural residents would be even more so. of the definition of “sub- This limitation purpose An additional 1986 sub- recognizes that Alaska is sistence uses” management sistence retain state law is to forty- unlike of the other unique, and game by of fish on federal lands meet- states, economy many rural nine ing requirements of ANILCA.7 rural areas Alaska is communities significantly dependent upon partic- Urban-Rural Subsistence Patterns residents of these commu- ipation objection to Appellants’ the 1986 basic taking of nities in the fish stocks and by excluding eligibility act is that personal game and fami- populations all urban subsistence users dwellers Further, legislature ly consumption. dwellers, the including unfairly all rural act general finds that the health and welfare some urban who have excludes significantly citizens is tied to lifestyle and lived a subsistence desire to participation these activities. so, needlessly while includ- continue to do making Id. determina- ing at 1229-30. rural residents who have not numerous tion, legislature hunting a theme that engaged sounded in subsistence and fish- claim, words, by Congress ing. in enact- in other expressed Appellants was also ing unfairly criterion is both The House Committee urban/rural ANILCA. problems has not been boards the tools to solve the in harvest is available in federal courts Madison, disruption briefed. that followed and will as- management sure retain the state will of fish Fisher, Re- Senator a member of the Senate throughout meeting > Committee, source noted the Senate floor requirements of the federal subsistence law.” legislation provide will debate: "[T]his For engage in activities. ex- under-inclusive, it excludes deserv- because Sitka, residents, over-inclusive, in the ample, City be- which classi- ing urban rural, undeserving population resi- although cause it fied as has includes Appellants suggest 7,803, dents. instead some of the households sam- 26% depend upon should pled hunting fishing. did no did no 7% traditions, not on individual needs and Id. at 235. City Nome, in the Similarly, place one’s of residence. 3,249, population is also rural under regulations, id. some of all 5% appellants’ claim supports record locally taken fish households use no ur- there numbers of are substantial Id. at 111. game. study of users. A state ban subsistence found patterns8 that of subsistence use study amply supports also crit- of subsistence salmon some holders importance ical of subsistence River fishery, Tanana permits the 1980 fishing to the numerous residents of small exhibited the approximately attributes 20% villages and remote of our state. For ex- commonly with traditional sub- associated in the ample, Hampton census area Wade though they lifestyle, even all re- sistence Alaska, average annual per of Western *5 Fairbanks area. The sided the urban $2,737 (1979),10 capita cash income was report states: 30, and id. at average household har- Despite in or popu- residence near their 4,597, weight, pounds vested dressed of lated of the Fairbanks North Star areas Id. at 42. year. fish and each Borough, generally par- households these economy ticipated wage in the on a sea- History The Article VIII Clauses— longer sonal and had of basis histories Analysis fishery, participation in the lower cash A. incomes, larger and somewhat household users. majority sizes than the of Some Section 15 of VIII of the Alaska article longstanding of these households have provides: Constitution fishery. cultural ties to the subsistence privilege special No exclusive or of users, fishing For these intensive more fishery shall created or authorized in sub-district Y-6C was less a recreational the natural of the State. waters This outing integral component than an power does section not restrict in Interior way of life Alaska. any fishery entry to limit into State Their in an area which cur- residence conservation, purposes resource urban, rently by regulation as defined prevent among economic distress fisher- coupled escalating demands dependent upon them men those base, however, ques- the resource raise promote the a livelihood and to efficient tions these more intensive about whether development aquaculture in the State. can in the future. uses continue provides: 3 of article VIII Section city Study Similarly, at in the Ho- 12. occurring in their Wherever natural mer, regulations,9 an under the urban area fish, wildlife, state, and waters re- study reports city that 38.2% for common served use. at least one-half residents obtained of their provides: supply personal meat and 17 article VIII fish hunt- Section Id. ing activities. 162. governing regulations Laws use Likewise, disposal ap- shall study or of natural resources documents the fact similarly ply equally persons live in to all situ- that numerous Alaskans who areas subject regulations as to the matter classified rural do not ated with reference Resource AAC 99.014. 8.R.J. Wolfe and LJ. Ellanna Use and 9. 5 Systems: Fishing Case Studies Socioeconomic Communities, Hunting and Paper in Alaskan Technical $11,152. average was The statewide Department Alaska of Fish Number Study at 30. Subsistence, Game, Juneau, and March, Division (hereinafter “Study”). 3 and implicitly 15 and sections by the law or section purpose to be served Pack- Hynes v. Grimes regulation. They focus on Co., L.Ed. ing 337 U.S. these Although the ramifications (1949), interpreted sec- a case varied, they at least one share clauses are Act, former 48 U.S.C. of White special privileges meaning: exclusive (1941), under which prohibited. Sec- 220-224 wildlife are take fish and §§ respect to explicitly with regulated tion 15 states this before statehood. fisheries were of our Constitu- proceedings fisheries. that the Hynes, Supreme Court held the same that tional Convention show prefer- prohibited granting Act White respect to sec- meaning was intended with right to fish to Native residents of ential tions 3 and 17. Id. the Karluk Reservation. of the Constitutional precedential A memorandum case S.Ct. at 989. This Resources ex- on Convention Committee contend, they importance, because the common use presses the view Act. 15 was based on section of the White purposes prohibi- as one of its clause has agrees response, the state special privi- grants or tion on exclusive first sentence of section 15 is based ex- leges. memorandum states: “The However, section 1 of the White Act. implies that pression ‘for common use’ Hynes distinguishes grounds state subject resources are not to be the exclusive to fish there was special privileges as grants contrast, to “a closed class.” In (cid:127)available royal in ancient frequently so the case argues there is no closed class here be- Conven- tradition.” Alaska Constitutional *6 “people may eligible par- cause become by Drafted Papers, Papers Folder Resources, ticipate by establishing in entitled “Terms.” subsistence uses on Committee Further, their domicile a rural area.” Resources commenta- The Committee on the state relies on Kenai Peninsula Fish- application ry respect to the uniform State, Cooperative ermen’s Association v. clause states: (Alaska 1981) which held any This section is intended to exclude that 15 does not bar differential especially privileged any per- status for commercial, sport, treatment between son in the use of natural resources sub- ject disposition to the of the state. subsistence fishermen. The intervenors’ argument response exclusively relies Proceedings of the Constitutional this case. (Dec. 16, 1955). Convention (Alas- v. Owsichek 763 P.2d 488 parties correctly agree The that no 1988), ka we observed that the article VIII right fishery exclusive of clause is based on provisions designed to ensure to the were Act. The section of White commenta- public possible access to wild- broadest ry concerning right the exclusive “the common use life. We noted that prepared clause the Committee on Re- impose[s] upon the state a trust clause sources of the Constitutional Convention fish, manage duty to wildlife and water states: all for the benefit of resources of the state intended to a This section is serve as added). Id. people.” (emphasis at 495 provision prohibiting substitute for the requirement duty of this is a minimum “[A] right the several of fisheries the White prohibition against any special privi- ... using terminology Act. Instead of Ostrosky, Id. State leges.” at 496. purposes sought by Act the that (Alaska 1983), P.2d we ob- prohibition given expression of ex- served that the common use no exclu- right special privileges any or clusive fishery clauses reflected “anti- right sive person to the fisheries of the state. exclusionist values.” Proceedings Alaska Constitutional the rural resi- Appellants contend Proceedings Leg- at 87 Convention dency requirement to an exclusive amounts Council). explicitly by special privilege prohibited or islative Act, language The Secretary of the White grant of the Interior to right which the no occupants exclusive clause is privilege reservation ex- substitute, meant to be a is as follows: fishing rights.... clusive commercial “Exclusive,” Provided, as used Section 1 every regulation such Act, White Secretary only grant made of the forbids not Commerce to a general application single person shall corporation within the any but to particular applies, special area to which it group or people. number of The that no exclusive or several fish- legislative history set out above shows therein, ery granted shall be nor shall this. offending regulations any citizen of the United States be denied brought about the pro- enactment of the take, cure, prepare, pre- viso in 1 of the White Act were admin- § serve fish or shellfish in area of the fishing istered so as to limit to those who waters of fishing permit- Alaska where using had been the fisheries before the Secretary ted of the Commerce. regulations. 6, 1924, 272, 1, Act of June ch. 43 Stat. § 337 U.S. at 69 S.Ct. at 988.12 above, As noted the state seeks to distin appellants’ Hynes reliance on as an guish Hynes on ground Hynes explanation meaning of the of the bar on involved a closed recipients class of of a rights special privileges is special privilege, whereas the 1986 subsist apt. At in Hynes regulation issue was a ence law does not anyone because who the Secretary of the Interior11 prohibiting wants to hunt and pur fish for subsistence commercial salmon in all waters poses can move ato rural area. We find 3,000 within feet of the shores of the Kar- argument unpersuasive. If it were luk Reservation. 337 atU.S. 69 S.Ct. at valid, virtually any discrimination based on 973. The Secretarial excep- Order made an residence justified would be —the tion which residing allowed Natives simply disfavored area could move. Reservation and their licensees to fish in Such a rationale is inconsistent with the Supreme waters. Id. The Court *7 prevailing approach in territorial discrimi exception held that this in favor of the cases, subject nation which is to territorial Native residents and their licensees violat- scrutiny classifications to equal under the ed section 1 of the White Act. The court protection Martin, clause. Gilman v. stated: (Alaska 1983); Neuman, P.2d Ter think it proviso, clear that its “that [W]e Discrimination, ritorial Equal Protec right no exclusive or several tion, Self-Determination, 135 U.Pa. therein,” granted shall be applies to com- (1987). L.Rev. 274-75 fishing by mercial equally Natives with The fishing companies, state’s and the intervenors’ reliance nonresidents of Alas- on ka or other American Kenai is also off the mark. citizens and so Peninsula applies whether those That merely Natives are or are case affirmed what article not residents on a explicitly pref- reservation. We find 413 says —that nothing in the White Act that authorizes among erences uses of fish beneficial Regulatory jurisdiction case, over the administra- U.S. at 69 S.Ct. at 973. quote tion of the White Act was transferred from the in the text makes it clear that if the residence, Department solely Department exception of Commerce to the had been based Interior, race, 1, 1939; July rather it would Hynes, effective than on residence also have been struck down. U.S. at 92 n. 69 S.Ct. at 973 n. 4. VIII, section 4 of the Alaska agree 13.Article Constitu- 12. We do not with Justice Rabinowitz’s provides: statement in dissent that the limitation struck Hynes predicated solely forests, wildlife, down in was Fish, on the fact grasslands, and all oth- that the users were Indians. replenishable belonging 18. Both er resources to the Infra residency utilized, required ethnic status and local developed, were State shall be and main- regulation question applied as the yield principle, subject to "natives tained on the sustained possession preferences among of [the Karluk] reservation.” 337 to beneficial uses. g allowed, beyond the go be to far would legislatively or administra- be the section. purpose of We stated in Kenai Pe-

tively established. ninsula: (footnote omitted). The at 904 must, may, make allocation prohibit granting state indeed 15 does

While section commercial, and sport, between fishing rights, that section monopoly decisions authority, how- users. That treat- differential prohibit meant to ever, imply power to limit admis- does not groups as com- user ment of such diverse group.14 sion to a user mercial, fisher- sport, and subsistence that, a cer- because men. To conclude guaranteed Act Section 1 of the White sport made available species tain resi equal regardless to fisheries access area, Hynes fish- given language commercial the Act and fishing in a dence. The must also be make this clear.15 Alaska’s constitutional species ing of the same fall, foregoing Rabinow- came back this and came down answers Justice When I 14. The also here, interpretation considering that our we were matters of this itz's contention equal kind, is in conflict of article VIII Delegate access clauses Alaska and I talked We have consistent- article VIII section 4. with exclu- over the matter with reference to those ly position on admission to taken the that limits rights, Secretary and I of Com- sive merce, saw scrutiny subject under the groups to user Secretary him- and the of Commerce See State v. access clauses. article VIII glad said that he would be to have that self 1983); (Alaska Ostrosky, 667 P.2d away, certainly he was discretion taken P.2d Owsichek v. policy, not in favor of that but those who 1988). ground were on the and who had been deal- ing especially might the matter and who history legislative Act is in of the White The experts be to be recom- considered had Congressional debate at the time the accord. urged policy pur- mended and that that proposed concern White Act was demonstrated him, say, justice will to that he said sued. I and non-residents alike that Alaska residents frankly prefer have that being that he would not to were excluded from Alaska fisheries. Congress' power, say demonstrated desire that absolute so I can for him that he is debate also every- equally glad put pro- provision Alaska fisheries be accessible to that this in the bill hibiting granting rights one: him from exclusive Secretary up of Commerce Mr. Robinson. within the areas there. sought give right to fish in certain to exclusive water, attempt give Alaskan and out of to fish, depriving large rights to thus I have been unable to find Mr. Robinson. pursue number of the any authority Secretary] grant ex- [the vocation, great complaint usual bill, however, arose. This rights fishery. It was about that clusive Secretary to the denies Com- alleged authority that most of the abuse any power grant an exclusive merce arose; namely, Secretary complaints that the requires give everyone equal fish him to *8 reservations, had created in some instances fishing rights permit- within the areas where is granted had in certain waters and in others ted. fish, right usually large to to the exclusive concerns, corporations packing or which de- opportunity prived the fishermen of the to Washington. Mr. Jones The bill removes of occupations; they pursue desired complaint principal with refer- cause of bill, very provision much the that is in this by Secretary power ence to the exercise of every to the United which secures citizen of Commerce_ Within the two reserva- right upon to in Alaskan waters States fish fishing areas] tions restricted that were [of and without discrimination. The terms year ago or two created Executive Order Secretary any power deprives the ... to bill Secretary has seen fit of Commerce to rights grant to fish in Alaskan wa- exclusive regulations under which outsiders make might ters. words, go not in order to fish. other added). (1924) (emphasis Cong.Rec. 9520-21 there, already if [the those who are Secretary] thought located upon Congressional part debate Based they took all the fish that above, Hynes that concluded identified taken, given rights, should be were full legislative history of the White Act [T]he go nobody else could there and take clearly says, emphasizes only what the statute fish. is, fishing special privileges in Alaskan that no rights. King: They given Mr. were exclusive preserves. They may Washington. be Mr. Jones of (footnote Hynes, say 337 U.S. at rights, but I want to called exclusive omitted). justice Secretary of Commerce: to the noted, residency As that Hynes.16 framers were aware criterion used in' the VIII to be a section 15 of article was meant conclusively 1986 act which excludes all 1 of White Act for section substitute hunting urban residents subsistence It purposes.17 to further follows its fishing regardless of their individual to en section likewise was meant that characteristics is unconstitutional. in fisher equal right participate an to sure We are not called in this case to ies, regardless of where one resides. might rule what selection criteria be only Although pertains to fish- section appropriate, constitutional. It seems how- eries, prevention grants of exclusive ever, any system to note closes special to fish privileges respect or with some, all, participation appli- to but not game the com- purpose is also one necessarily cants will create a tension with application mon use and uniform claus- cases, such assuming article VIII. special grant es.18 It follows that the exclusionary per criterion is not se im- privileges respect based on to permissible, suggest our decisions that de- prohibited. one’s residence also is manding scrutiny appropriate. is require- We therefore conclude that the We alluded to this v. Ostrosky, State ment contained in the 1986 subsistence (Alaska 1983) 667 P.2d 1184 in discussing statute, a rural that one must reside in interplay constitutionally between the participate area in order entry system, allowed limited which was 3, 15, hunting fishing, violates sections permitted by amendment to article 17 of article VIII the Alaska Consti- section and the common use and no tution.19 right fisheries clauses. We stated: B. the common use clause of section [S]ince and the no exclusive of fishery The conclusion we have reached does not clause of remain in consti- everyone engage mean that can in subsist- tution, premise argument of the fishing. ence imply We do not system entry that whatever of limited constitution bars all methods of which, imposed must be one required exclusion where exclusion is consistent protection species reasons. entry system, We hold with a feasible limited en- "eligibility A participate 16. memo of the Committee on Resources de- mean that in subsist fining following terms states the under “White solely ence uses is determined with reference to Act Provisions 48 U.S.C.A.222:” That, where an individual lives.” at 17. Infra every regulation however, That such made clearly respect Secre- is the case with tary general application shall be within the users. resident first-tier subsistence Urban particular applies, area to which it and that be subsistence users because subsistence general right no exclusive or shall definition limited to rural residents. uses therein, granted nor shall citizen of the 16.05.940(30),quoted supra pp. 1-2. AS Yet take, cure, prepare, U.S. be denied the may be all rural residents first-tier preserve any area fish or shellfish in regard without to their individual charac users *9 permitted by waters of Alaska where is regulation on which Justice Rabi teristics. Secretary_ the The word "exclusive" for- relies, 99.010(b), 5 AAC defines custom nowitz ary person grant single bids not corporation, a to a uses but not state and traditional does any special group or but to num- rights can be limited to first-tier (Hynes-Grimes people. ber of vation) Karluk Reser- customary As we users. stated traditional ‘customary phrase Madison "the tradi in Papers, Alaska Constitutional Convention Fold- the word ‘uses’ does not tional’ modifies ... 210. er 696 P.2d at 174. The state to users.” refer Commentary Lands on Article on State 17. acknowledges only in the second-tier sub Resources, Proceedings 6 the Natural of may context individual characteristics sistence Constitutional Convention at 87. separate residents be sec those rural who subsistence users from those who are ond-tier supra pages See 5 and 6. ineligible. Appellees, p. of 8. The state Brief need limita dissenting notes that the for a second-tier Justice states also Rabinowitz in his has, date, opinion interpret that he not statute to not arisen. Id. does

10 except where optimum process, number impingement on possible the least tails doing so. is a substantial reason there and on the use reservation

the common fishery (footnote omitted). clause. The of Id., no exclusive P.2d at 1266 that free transfer- argument concludes Owsichek, suggested recently we Most in possible the least ability not entail does VIII, the uniform 17 of that section article val- on anti-exclusionist impingement clause, require “may ‘more application reflect. provisions does stringent ues which review’ a statute than of involving equal protection in cases clause argument premise of this ... [T]he Owsichek, 763 P.2d at natural resources.” logical. Martin, v. (quoting n. 17 Gilman the same theme expressed We Id. at 1191. (Alaska 1983)). We also cited P.2d Entry Fisheries in Johns Commercial approval dissent Justice Rabinowitz’s 1988) Commission, P.2d at 1196 which em- Ostrosky, P.2d the Commer- concerning obligation ap- a least alternative ploys restrictive Entry estab- cial Fisheries Commission “highly important proach in view entry permits. optimum lish an number running person each within the interest We stated Johns: by virtue of the common use clause. state” there [Ostrosky], noted that is a we 763 P.2d at 492 n. 10. entry limited clause tension between the reviewing legislation which burdens and the state constitution clauses article access clauses of open guarantee the constitution which purpose of burden must be least that to be con- suggested We fisheries. accomplish important. The used to means stitutional, entry system a should limited purpose designed must for the least open possible little on the impinge as as infringement open possible on article VIII’s fishery with the con- clauses consistent Ostrosky, supra values. access purposes entry, Johns, of limited supra stitutional at 1266. namely, prevention economic distress employ analysis this We method conservation. to fishermen and resource ground as present case an alternative optimum Ostrosky.... number Using approach, we decision. this conclude Entry Act is provision of the Limited residency that the rural-urban criterion is entry limited mechanism the reasons that fol- unconstitutional

meant to be restricted to its constitution- low. mechanism, purposes. al this Without purpose of the act is to ensure One potential to be entry limited has engage that those Alaskans who need creating system which the effect has fishing in hunting and order to an exclusive to ensure wealth provide for their necessities are basic able values, permit permit holders important This to do so. is an interest.20 exceeding pur- constitutional while However, accomplish used to means poses entry. of limited Because this risk purpose extremely are crude. There exists, unconstitutionality are, above, [Com- as noted numbers of substantial Entry living designated mercial Fisheries Alaskans in areas ur- Commission] embarking legitimate who have claims as subsist- delay should not ban expressed purpose aid 20. Another is to commu- two areas in order to aid the communities in the disadvantaged dependent more area. The nities whose ence, are subsist- communities merely the aiding collective sum of the the individual residents.” as distinct from resi- separate purpose dents. This is aid community members where the to individual purpose comply with A third is to ANILCAin *10 directly goes to As we aid the individuals. stat- game control order to retain state fish and 624, Enserch, (Alas- ed in State v. 634 It view this federal lands. is difficult to as a 1989): ka “It would make sense to conclude sufficiently important not purpose. ANILCA does may that a statute discriminate between require not resi- compliance. State not state control dents of two areas to aid the residents merely questionable in order of is a sake of control area, disadvantaged the more but that a goal infringe upon open such when terms statute could residents discriminate between of of VIII. access values article

11 another, Likewise, enjoy to as much as cannot be there are substantial ence users. living desig- privilege in areas by numbers of Alaskans made law the exclusive legitimate have no nated as rural who or people of a certain class employing A claims. classification scheme upon terms and conditions that do in- individual characteristics would be less people apply to the whole alike. This val- open of the article VIII access vasive right in which one individual has common apt accomplish to ues and much more in every other individual the com- purpose of the statute than the urban-rural munity game, to take and use fish and criterion. naturae, ferae is one that has existed jurisdictions We note that several other times, and, although from the remotest residential have struck down intrastate England at one time in after the Norman game statutes. preferences in fish and Conquest right game to take and fish support authorities our view that the These royal prerogative as a claimed to equal article access clauses of people, of the exclusion was restored protection guar- special type are a Runnymede to them Barons in im- anty, bar the residential discrimination 1215, great and was declared in char- posed in this v. 110 ease.21 Lewis they King ter which wrested from John. 204, (1913) contains an Ark. 161 S.W. 154 Green, rights,” says “The “which the excellent historical statement: they barons claimed for themselves necessary it becomes for the When large.” claimed for the nation at propagation preservation wild History English People, Green’s of the public, and fish the use of the 4, pp. vol. 252-254. acting sovereign their ca- rights These were confirmed and es pacity, through lawmaking power, England by tablished ever thereafter in may pass regulate right laws to Parliament, they acts of have come enjoys in each individual which he com- England down to us from the laws of every mon with other member of the may regarded heritage as a common community to use of same. But when English-speaking people. See sovereign regulate to undertakes 581, 111 People, Parker v. Ill. 53 Am. right restrain the individual in its as a Rep. Conn., 643. Also v. 161 U.S. Geer community enjoy member of 519, 600, 793; Sup.Ct. 16 40 L.Ed. Mar prop- to take and use this common Waddell, 367, tin v. all, 16 Pet. 10 erty it must do -so the same [41 U.S.] only justification L.Ed. 997. The for a community terms to all of the members restricting regulating law the com right, alike. The common which one indi- community vidual of the whole is entitled mon of individuals to take wild 56, 327, (1971) (statutes prohibiting Bryan, State v. 87 Fla. 99 So. crabber from crab- See (1924) (state levying bing county county $10 $50 law license tax in waters of other than his cer- on state residents who non-residents of prohibiting oystermen residence counties, prerequisite hunting a tain as invalid); county going to waters of another counties, when of those counties those pay only Power, Oysters Than You Wanted More About $1.25, equal protection); violates $1 199, Know, (1970) Maryland To L.Rev. 184, 454, Barkley, v. 192 N.C. 134 S.E. State (1926) (state (“A county represents peculiar non-resident no levying $3 law fee on non- merely but the same threat threat to the county, $1 resident hunters in the and a fee on resident.”). county represented a county, residents of the held invalid in that it Hilton, 174 Mass. But see Commonwealth unequally); Harper v. taxed inhabitants Gallo- (1899) (selectmen of a town 54 N.E. (1910) (state way, 58 Fla. 51 So. digging prohibit of clams nonresi- required state Florida law that citizens of the Norton, town); State v. 335 A.2d dents of the 607, County were of Marion who give previous not residents (Me.1975) (state compelling gov- had notice of intention to hunt of its clams ernmental interest conservation privilege pay special to hunting game license tax for the purpose by, attempt and its to achieve that County, in Marion while no no- apply part, authorizing municipalities a resi- required license tax was of residents of tice or licensing shell dent-nonresident standard County, equal protection denied Marion laws); unconstitutionally Director, discriminate fisheries did not Dep’t Chesapeake Bruce v. nonresidents). against Affairs, Bay 261 Md. 276 A.2d *11 JJ„ MOORE, and necessity pro COMPTON the game and fish is concurring. extinction, and tecting the same the perpetuate to preserve and thus to J., WITZ, dissenting. RABINO community the the individual members Justice, COMPTON, concurring. they have had rights which inalienable state, While the from time immemorial. opinion, Part A the hold- agree I fish, game and so to holding the to title preferential ing this scheme violates every mem individual speak, in trust for 3, VIII, 17 of the art. sections 15 and may pass community, laws the ber of Alaska Constitution. each individual rights of regulate the B opinion regarding Part express I no as taking using the com the manner of superfluous it is to the decision. already yet, as we have property, mon done, stated, the under Con this must be Justice, MOORE, concurring. stitution, the upon same terms to all the correctly that chap- concludes The court privileges or immuni people. special No (“the Act”) 52, the ter violates SLA can be ties conferred. separately to I write Alaska Constitution. necessity preserva- for the Where the the explain my understanding of court's and fish game exists wild part B of section entitled holding in the state, the that terri- certain territories of History and “The Article VIII Clauses— purpose tory may segregated the be join, I I Analysis,” which and because dis- taking regulating the part agree analysis in A. with the court’s therein; privilege but and fish must be extend- taking using same Equal Protection the state outside ed to compelling is motivated The Act same terms that territory ensuring purpose, persons who are are given those who dependent upon hunting and territory legisla- embraced However, fishing have access wildlife. Territory, 2 Hayes Wash.T. tion. v. geographical classification Act’s 286, Pac. In the cases v. of State only loosely pur- to that scheme is related 51, 15, L.R.A. 28 S.E. Higgins, S.C. case, pose. equal protection This is an Fla. Harper Galloway, at that. easy an one (N.S.) L.R.A. 51 South. question here in- 19 Ann.Cas. I, Article section of the Consti- and determined volved considered provides persons that “all are ... tution doctrine we have an- accord with the equal rights, opportunities, entitled to nounced. protection We under law....” have many interpreting provi- cases decided (footnote omitted, Id. 161 S.W. at 155-156 sion, recently, most v. Enserch State Alas- added). emphasis Construction, Inc., ka 787 P.2d 624 1989). The Alaska Constitution ahas simi- CONCLUSION lar specifically clause concerning natural disposition case makes it un- of this Our resources. Article grounds other ad- necessary to discuss application clause, uniform provides that For rea- appellants. vanced above regulations governing the “[l]aws use superior sons, judgment court is disposal of natural resources shall apply to the This case remanded reversed. equally persons to all similarly situated superior court with instructions to issue with reference to the subject matter and prefer- declaratory judgment purpose to be served by regula- the law or ence of ch. 52 1986 unconstitutional SLA tion.” action to take further such appropriate. protection applying the When I, impor- we article determine REMANDED. clause of

REVERSED and *12 tance of the individual interest affected people desig- set of who reside in areas importance nated as the enactment. of the indi- rural under the Act and the set of dependent who vidual interest determines the level scru- subsistence tiny apply hunting fishing. we to both The fit the state’s interest in between the enactment and Act and the nexus between that the state’s interest does not even Enserch, approach required enactment. withstand close interest Therefore, 631-632; scrutiny. Assur- the Act P.2d at Alaska violates the Pacific Brown, equal protection ance v. application Co. 687 P.2d and uniform 269-70- (Alaska 1984). explicitly Without clauses of the acknowl- Alaska Constitution. it, edging opinion employs court’s say This is not to that all subsistence analysis same under applica- the uniform preference laws would be unconstitutional. supra pp. clause of article VIII. See simply I pass believe that for such a law to 10-11. Since the principle equality un- muster, constitutional closely must be clauses, derlies both the use of our related compelling purpose. to its A law protection analysis in applica- the uniform providing for individual determinations of proper. tion context is eligibility my would in sufficiently view be tailored to the state’s interest to

I believe that the withstand individual interest im Act, challenge. constitutional paired by the access to wildlife for purposes, subsistence species is a Common Use and Exclusive important right engage in economic en Right Fishery Enserch, deavor at issue in 632-633.

See also Entry Commercial Fisheries holding The court’s in Part A of the Apokedak, Comm’n v. 606 P.2d 1266 section entitled “The Article VIII Claus- (Alaska 1980). challenged enactment History Analysis” altogether is not es— clear. I therefore should scrutiny.1 receive close agree with the court to the extent The Act closely then at least must be relat that it holds that an geographical intrastate important ed to an state interest. En taking for the of wildlife vio- serch, at 633. lates sections 3 and 15 of article VIII of the I reject any implica- Constitution. interest, ensuring The state’s that those preferences, tion that especially all all sub- engage who must hunting subsistence preferences, sistence would violate these fishing so, are able to do is undoubted- sections. I do not believe that the court ly important. Indeed, I compel- believe it is VIII, can find a violation of article However, ling. the Act’s classification 17 without equal protection analysis. a full deciding scheme for who is entitled en- join part I do not A opinion, of the court’s gage in hunting subsistence I but concur in its result.2 implementing regulations and its are closely purpose related to the of the Act. provides Section 15 of article VIII opinion describes, As the court’s large special privilege “[n]o numbers of residents of areas classified as shall be created or authorized in the dependent upon urban under the Act are natural waters of the State.” Alaska hunting Const., fishing. added). (emphasis Con- art. 15§ versely, cities, larger some of the state’s provides Section 4 of article VIII that the many people dependent upon where are not “subject pref- use of resources shall be fishing, among are clas- erences beneficial uses.” On the surface, Supra pp. sified as rural. 4-5. There appears there to be some conflict a modest correlation provisions. greatest between the between these To n Enserch, 633; not, Lynden Transp., however, v. Patrick question, I would reach this Inc., (Alaska 1988). may 765 P.2d It geographical prefer- because I believe that such great- be that the enactment should receive even equal protection ences violate the and uniform scrutiny application er under the uniform application clauses of the Alaska Constitution. clause; however, the court has not decided that question. Owsichek (Alaska 1988). n. 17 *13 14 finding a corre- difficulty I have no interpret pro- would must we possible, extent geographical hunt- prohibition of sponding each consistent with Article VIII

visions of use clause in the common 91, ing preferences State, P.2d 534 Abrams v. other. See VIII, p. supra 9. section 3. See of article (Alaska 1975). 95 prefer- some clearly 4 authorizes Section Justice, RABINOWITZ, dissenting. recog- The court upon uses. ences based to section 15 in exception parallel nized a holding that the court’s I dissent Coopera- Fisherman’s Kenai Peninsula In unconstitutional.1 1986 is ch. 52 SLA State, Association, P.2d Inc. v. 628 are not tive laws my view Alaska’s subsistence 1981), (“common wrote that where we either section 3 violative prohibit (“no right dif- use”), “was not meant to exclusive section 15 section 15 fisheries”), application (“equal of such diverse user treatment or section ferential commercial, sports, laws”) and subsist- of the Alaska of article VIII groups as 628 P.2d at 904. fishermen.” Constitution. ence uses from distinguishes subsistence Act VIII, provides explicitly Article section only. sport uses in name commercial and among uses.” “preferences beneficial above, is in its classification As discussed Co-opAss’n v. Fisherman’s In Kenai Pen. arbitrary upon resi- fairly one based fact a (Alaska 1981), we P.2d type of classification dence. It is not “[wjhile pro- 15 does part: section said permissible under previously held we have fishing rights, that granting monopoly hibit section prohibit differen- section was not meant groups user treatment of such diverse tial question whether left We are with commercial, sport, and subsistence fish- as permissible geographical preferences laws at issue The subsistence ermen.” given the reasons 15. For under section exclude individuals from access here do not 6-8, I supra pp. opinion, court’s see wildlife; rather, resources are wildlife upon Hynes reliance v. Grimes believe preferential Nor do allocated on a basis. Co., Packing 337 U.S. right these laws create an (1949), interpreted the which L.Ed. 1231 Rather, the effect of class. section 15 was federal statute providé laws is to for a subsistence based, Hynes, In the Court appropriate. is among beneficial users of the preference prohibiting fishing regulations invalidated exclusive, monopolistic, or resource. No the Karluk Reservation. the shores of off classes of resource users otherwise closed Hynes is deter- I not believe that While do are established. it involved an exclusive minative since area and not a mere particular fish in a ch. I further hold that 52 SLA would preference, 337 U.S. S.Ct. protection equal not violative of the 1986 is “special privilege[s]” proscribes (arti- section 15 the Alaska Constitution provisions of court, rights. Like the 17). well as exclusive I, article section cle section being Hynes as based I do not read scrutiny and my adoption view of the strict granted to the exclusive fact that in- alternative standards is least restrictive group. other rather than some Natives the nature of the inter- appropriate. Given distin- Hynes can be apply do I believe that I a lesser standard Nor est at stake would move to ability equal protection analysis. guished by purposes substantially the Act. qualify legislation thus under is rural areas and This subsistence legitimate legislative goals. n. 12. For these I pp. 7-8 & related to supra See legisla- reasons, geo- fit agree the court conclude that the between I furthering taking goal of fish the health and for the ture’s graphical preferences users, the sub- of subsistence under section 15. welfare permissible are not system it devised to Although sistence sec- Act thus violates objective, sufficiently close fishing, carry out this only to facially applicable tion 15 laws. state subsistence 1. Hereinafter enacting ch. 52 SLA 1986 the Alaska scrutiny under Alaska’s

to withstand Representatives adopted House of a letter provisions. protection letter sub- of intent.5 The articulated the INTRODUCTION. preference of sistence-rural the act in *14 impact state’s response the the following terms: growth has had subsist- population of the “sub- This limitation definition of lifestyles, enacted Congress in 1980 ence recognizes is sistence uses” that Alaska National Conser- the Alaska Interest Lands unique, forty- unlike of the and other (hereinafter or federal vation Act ANILCA states, economy many nine the rural law).2 designed subsistence ANILCA was in rural is communities areas in Alaska protect hunting subsistence and significantly dependent upon partic- commer- by priority such uses giving over ipation by the residents of the communi- sport cial uses in rural areas.3 and taking game ties in of fish stocks and specified personal populations family The federal subsistence law for and con- Further, “customary sumption. legislature that uses must be finds subsistence by general uses resi- health and and traditional rural Alaska welfare 803; significantly is ANILCA 16 3113 citizens tied to dents.” U.S.C. § § added). Thus, ANILCA, participation in these activities.6 (emphasis under permits for subsistence was de- eligibility statutes here challenged subsistence part upon pendent geographic one’s community area” as “a define “rural or 804; place 16 of residence. ANILCA § area of the state which the noncommer- U.S.C. 3114.4 § cial, customary, and traditional use fish personal family consump- authorized the continue ANILCA state to principal tion is a characteristic of econ- game inhabiting fish managing and Alas- omy community or area.” AS 16.05.- lands and state ka’s federal waters if the 940(25). maintaining regulations established and definition of for subsistence Appellants’ basic contention here is in the federal uses articulated subsistence “by excluding eligibility as subsist- 805(d); U.S.C. law. ANILCA 16 by § ence users all urban dwellers and includ- 3115(d). legislature complied, The state dwellers, ing unfairly all rural excludes § thereby managerial and retained control some residents who urban have lived lifestyle over federal lands located within the state and desire to subsistence continue authorizing so, needlessly the Joint Fish and including Boards of to do numer- while regulations defining promulgate engaged Game to ous rural residents who have not fishing.” “rural” use. subsistence 96-487, (1980); 94 Stat. 16 6. See also the House on Interior Pub.L. No. 2371 Committee (West 1985). Congress Report conjunction U.S.C. 3101-3233 §§ issued Insular Affairs prefaced VIII of ANILCA declara- Title with a passage of ANILCA. opportunity "the continuation tion that testimony After consideration of uses rural of Alaska for subsistence hearings meetings subcommittee's and town economic, physical, to Native ... is essential throughout and review of studies done traditional, 16 cultural existence....” academic, federal, state, variety of 3111(1). . § U.S.C. agencies groups, has other Committee (1982 Supp. importance IV §§ 3. See U.S.C. 3111-3126 & no doubt about subsistence 16 1986). of Alaska. Reliable uses to the given to the evidence was Committee demon- popula- sparse 4. "Rural" areas are those with fifty percent strating of the food tions, the term "rural” is as used in ANILCA three-quarters Alas- of the Native families in v. of art. Indian Tribe State not a term Kenaitze villages acquired medium ka's small and Cir.1988), Alaska, (9th F.2d cert. 312 uses, through such and 40% of subsistence — -, denied, U.S. 109 S.Ct. average spend an of 6 to 7 months families (1989), (term given L.Ed.2d "rural” is to year subsistence activities.... ordinary significance, “sparsely meaning its Sess., Cong., H.R.Rep. 95th 2d No. populated”). (1978). House Journal 1246. 5.1985 “public then, said that this dispute, is whether resources.8 It linchpin the state “impose[s] upon doctrine9 trust” law constitutes challenged fish, manage the wildlife duty a trust unconstitutionally attempt imperfect an water state for the resources protect- legislature's purpose of fulfill the people.” benefit all Owsichek ing uses. (Alaska 1988)(cita omitted); Indian tions see also Metlakatla I. LAWS DO ALASKA’SSUBSISTENCE Annette Reserve v. Community, Island ARTICLE OF THE VIOLATE VIII 1961), Egan, 362 P.2d ALASKA CONSTITUTION? 7 L.Ed.2d aff'd, U.S. Appellants challenge constitutionality *15 (1962); State, Dep’t 562 Herscher the under three state subsistence laws Commerce, 996, (Alaska P.2d 1003 568 clauses article VIII of the Alaska Consti- 1977). use”), (“no tution, (“common 15 sections 3 Ostrosky, State v. 667 P.2d 1184 fisheries”), and right 17 exclusive denied, (Alaska 1983),reh’g 468 U.S. laws”).7 The (“equal application of court (1984), L.Ed.2d we meaning” “shared to attributes a accepted use the view that the common provisions: three that constitutional “exclu- clause reflects “anti-exclusionist values.” privileges special sive or to take fish and Thereafter, at 1191. Id. P.2d Owsi prohibited.” wildlife The court then 1988), State, (Alaska chek v. 763 P.2d 488 a the subsistence statute’s concludes involving right case an exclusive to conduct rural residents violates for each guided hunting particular areas of wil of the clauses and aforementioned offends derness, stating we reiterated this theme meaning I the of article VIII. dis- shared fundamentally that section 3 is “anti-mo agree. nopoly” (“Because in its thrust. Id. at 493 guide clearly an EGA a [exclusive area] A. Three: Section The “Common Use” type [legislative] of monopoly history ... Clause. strongly suggests the statutes at issue VIII, (the Article “common unconstitutional.”). here are to our Critical clause) designed use” is derived from laws holding guide licensing system that the at guarantee partic to the common citizen issue was un Owsichek unconstitutional harvest, ipation in and to divest wildlife the the der common use clause were the follow ing per entitlement to the Crown of exclusive those characteristics of scheme: it 7. Section 3 of article common use (1913), In Lewis v. reference to State. equally Section 17 Laws disposal restrict the into conservation, them for a among efficient fish, wildlife, No Section 15 ral waters of the State. This section Wherever ery served shall be any fishery the court for fishermen development all occurring regulations governing common use. of article State, of article VIII principle in power created or authorized in the natu- livelihood natural the law or persons similarly and waters are reserved to subject described for prevent of the State VIII VIII special privilege Ark. resources shall those matter and to purposes provides: regulation. aquaculture in provides: provides: economic distress following dependent history to limit natural situated 161 S.W. promote of resource purpose does use terms: apply entry state, fish- not 9.The government holds untaken ary duty manage public mon Id. Owsichek v. 1988). ed from the laws of lished ever thereafter in Parliament, speaking people. they Norman them These [AJIthough good aas exclusion of use, public wrested from was claimed ^[******] (citations omitted). rights Conquest declared in the and that common trust at one time in Barons at were they England public such resources government doctrine King as a heritage people, have confirmed and Runnymede royal prerogative wildlife John. great England by come down beneficiary. it was restored to England to take fish and maintains 493-95 owes charter which in trust for be the com- a fiduci- after English- regard- acts of to use estab- See to single guide permanently (1) a following mitted to ex acteristics under the criteria: guides leading clude all other from hunts customary dependence and direct lands; professionally specific it favored livelihood; (2) mainstay resource as the guides expense established at the of new residence; (3) availability local of alter- market; guiding entrants in the it created 16.05.258(c). native resources. AS salable, li property-like interest in the interpretation The court’s of the common cense; exclusivity and it established of an prohibit legislature use clause would unlimited duration. Id. making any differential allocation of challenged In the case at bar the subsist- whatsoever, natural resources an outcome ence laws exhibit none of these characteris- precluded by holding our in Kenai Penin- tics. The state subsistence laws establish sula, (Alaska 1981) 628 P.2d 897 and the exclusive, preference, an language of article section which monopolistic, or otherwise closed class. explicitly provides “preferences among Anyone may join subsistence users mov- Kenai, beneficial uses.” we held that ing to a sector of the state which has been “[wjhile prohibit section 15 granting does Further, designated as a “rural area.” monopoly fishing rights, that section was *16 these laws do not establish subsistence prohibit not meant to differential treatment use, fishing as an exclusive commercial, of such groups diverse user as areas, in except during periods even sport, and subsistence fisherman.” scarcity.10 of extreme regard resource In (emphasis added). P.2d at 904 to this I think issue the court’s reliance on Moreover, provi- it is axiomatic that the Ostrosky misplaced. Owsichek and Both sions of article VIII of the Alaska Constitu- Ostrosky emphasize Owsichek and that the interpreted tion should be so as to avoid primary thrust of VIII article is anti-exclu- State, internal contradictions. sionist or Abrams anti-monopolistic, anti-prefer- (Alaska 1975) (“It 534 P.2d is an ential. undisputed maxim of constitutional con- I question do not read the in statutes as provisions struction that the different of providing eligibility participate in the document shall be read so as to avoid solely subsistence uses is determined possible”); conflict whenever Park v. reference to where an individual lives. (Alaska 1974) 786-87 That is not the case. The subsistence laws (“It accepted is a principle judicial well of implemented by at issue here are multi-fac- that, reasonably construction whenever regulations toral only which focus not possible, every provision of the Constitu- residence, place upon particular of but also effect, given meaning tion should be populations stocks and game, of fish and provisions and related should be harmon- particular patterns of subsistence us-. ized.”). my reading In view the court’s Moreover, age.11 individual characteristics VIII, prefer- article prohibiting section 3 as always considered under the state sub- among ences beneficial uses of Alaska’s during periods sistence law lean when it plainly resources conflicts with article necessary becomes to restrict even certain provides, section 4. That section in full: periods, subsistence uses. those the de- Fish, wildlife, forests, among grasslands, termination as to and all which individuals replenishible normally eligible belonging those for a other resources permit may harvesting utilized, continue developed, is made on to the State shall be analysis an yield basis of of individuals’ char- and maintained on the sustained 10. Alaska Statute 16.05.258(c) game light eight authorizes com stock in criteria. 5 AAC plete prohibition during 99.010(b). of non-subsistence uses eight These criteria include examina- periods of famine when the state’s total harvest use, populations’ patterns tion of individual support is insufficient to even normal subsist use, efficiency consistency methods and ence uses. use, storage, and methods of food as well as the 11. Subsistence uses must be nexus between the asserted subsistence use and "customary the maintenance of individuals’ cultural heri- tage. separate traditional" uses as determined Id. particular Boards after evaluation of a fish preferences among expressly Act was anti- subject to far the White

principle, uses. given 15 should be geographic, section beneficial in my opinion For similar construction. added.) The intent of section (Emphasis Hynes distinguishable impor- several differently can be situated persons is that respects. tant users of differently and some treated given pref- may legitimately be a resource First, Hynes did not involve an allocation over others. erence residence; game of fish on the basis constitu- brief, use clause the common rather, applied exemption at issue there fish and wild the doctrine tionalized fish, only predicated upon and was by the state for the in trust are held Indians, not their place users’ status as whole, as a rather public of the benefit 89-97, residence. 337 U.S. at posses- sovereign than Second, Hynes involved 971-976. an exclu- is consistent with principle sion. That had sive access which been made sovereign may manage state that the view class available to a closed of fisher- good, including the common wildlife Hynes regulation men. was a At issue preferences. Thus I con- certain beneficial Secretary completely of the Interior challenged subsistence laws clude that the prohibiting commercial salmon anti-monopolistic, do anti-ex- not offend 3,000 all feet of the waters within shores public underpinning the clusionist values reservation, exempting but Na- Karluk use doctrines embodied trust and common compre- tive fishermen from otherwise VIII Alaska’s 3 of article Therefore, Hynes, Id. hensive like ban. constitution. Owsichek, distinguishable *17 is from the clas- in present sification scheme at issue 15: “No Exclusive Section B. case, at bar may since in the case one Right” Clause. permits by eligible become for subsistence holding disagree with court’s I also moving Finally, area. into a rural as noted subsistence law violates arti- that the state VIII, previously, both article section 4 and (the VIII, cle 15 “no exclusive section Kenai Fisherman’s establish that section right” clause). prohibit 15 be read to cannot differential its interpretation court relies for The groups treatment of such diverse user upon Hynes v. right clause the no exclusive commercial, sport, and subsistence users. Co., 86, Packing 337 69 S.Ct. Grimes U.S. (1949), a 968, 1231 case in which 93 L.Ed. “Equal Applica- 17: Section C. Supreme interpret- States Court United tion” Clause. legislation governed ed the federal statehood, former Alaska’s fisheries before (the “equal Although applica- 17 (1941) (hereinafter 48 221-224 U.S.C. §§ clause”) VIII, component is a of article Act”). The White Act did in- “The White states, is the court essentially, as “ ’ seemingly prohibitive language clude equal stringent protection ‘more ... geographic distinction at here. kind of issue involving clause cases re- ... natural [for] in provides, 1 the White Act Section sources.” I will address these issues to- part: relevant gether. right exclusive or several [N]o nor shall citizen granted shall be ... II. DO THE 1986 STATE SUBSISTENCE be denied the of the United States VIOLATE ARTICLE LAWS cure, preserve take, fish prepare, EQUAL THE 17 OR PRO- SECTION any area shellfish in the waters of OF THE ALAS- TECTION CLAUSE fishing permitted by is Alaska where (ARTICLE I, KA CONSTITUTION Secretary of the Commerce. 1)? SECTION 6, 1924, 1, Ch. 43 stat. Act of June § added). hand, holds the state subsistence court (emphasis 464 On the other equal protection I laws disagree with the court’s view that inso- unconstitutional governmental grounds.12 goal protecting the health and welfare of the state’s subsistence Although yet this court has not ad- users, goal admittedly within the state’s equal dressed the issue whether access police powers pursue.13 right, fish is a fundamental we have held that commercial is Implicit not my legislation view that this fundamental. Commercial Fisheries En- protection not violative equal is the fur try Apokedak, v. P.2d Comm’n ther conclusion that the subsistence classi (Alaska 1980). Other courts have con- fication formulated to fulfill this conceded hunting cluded that recreational not a ly legitimate legislative purpose is not con See, right. fundamental e.g., Baldwin v. stitutionally infirm. As we said in Apoke Comm’n, dak, Montana Fish Game 606 P.2d at 1267: L.Ed.2d U.S. cases will arise in which [Individual (1978) (elk hunting by non-residents not those barred be able to show ex- fundamental); Employees Utah Public hardship. treme legislature in its State, (Utah 1980) Ass’n v. 610 P.2d 1272 conceivably wisdom could have better (entry big game permit drawing fun- provided equal for such instances. But damental). also See Herscher protection, even under stricter Alaska’s Commerce, Department P.2d standard, perfection does not demand (Alaska 1977). did, classification. If it there would be establishing few laws classifications that view, stake, i.e., my the interest at equal protection would sustain an chal- participate in subsistence lenge. fishing, right. is not a fundamental scrutiny Maximum is reserved for funda- legislation The subsistence question here rights mental suspect classifications. effectively captures within its ambit the Ostrosky, 667 P.2d at 1192. Given what I thousands of residing subsistence users perceive appropriate to be the character- Alaska’s villages. numerous involved, ization of the interest the state short, I would hold that the subsistence must demonstrate the existence of a sub- requirements laws’ fit satisfies *18 relationship stantial between the means uti- protection I, under both article legislation legitimate lized and the and article section 17 of the Alaska governmental sought ends to be achieved Constitution. thereby.

Since I am of the view that strict scruti-

ny inapplicable, ques- I conclude that the legislation

tioned does not violate the Alas- equal protection

ka Constitution’s clause. challenged fairly laws are substantially important related to the majority opinion employs 12. significantly article VIII these citizens is tied fare of to their concurring opinion section 17 and the of Justice participation in activities.” [subsistence] Moore uses article I section 1. As Justice House Journal 1246. In a similar vein this out, points analysis Moore the method of ValleySportsmen in State v. Tanana 's court said either case is the same. Because Alaska’s Ass'n, (Alaska 1978): P.2d 859 n. 18 protection stringent standards are more than years, many ... For hundreds of of the Native standard, any the federal constitutional statute depended hunting people of Alaska to ob- passes muster under Alaskan law will day, tain the necessities of life. To this de- equal protection also survive the clause of the cultures, spite those of different incursions Aero-Aqua United States Constitution. Herrick's Eskimos, many Alaska Indians and Aleuts eke Repair Department Transportation, out a livelihood reliance on fish and Therefore, (Alaska 1988). P.2d dis- game.... prime Not is the cussion of federal standard is omitted. importance furnishing the bare necessities life, previously, enacting but subsistence is at the core 13. As mentioned laws, many legislature state plicitly of the cultural tradition of of these the Alaska ex- general people.... found that "the health and wel-