*1 Bailey, and Jim Peter SHEPHERD Cross-Appellees,

Appellants and Alaska, OF DEPARTMENT

STATE GAME, and the Alaska

FISH AND Game, Appellees and

Board of Cross-

Appellants. S-5668,

Nos. S-5698. of Alaska. Court

May

game management Two Alaska resi- units. guides challenged consti- big game dent tutionality related of AS and its under the state federal con- *3 Shep- guides, Peter stitutions. One herd, appeals superior deci- now the court’s provisions. Shepherd sion upholding these of appeals also the court’s resolution aspects the suit. certain nonconstitutional of Shepherd Finally, both and the State the neither superior court’s conclusion that prevailing party attorney’s side a for was fees affirm purposes. We the entirety except in the court’s decision its attorney’s issue of fees. AND

I. PROCEEDINGS FACTS Bailey do busi- Peter and Jim hunting guides, catering big game ness as hunters. principally nonresident moose in Man- operates primarily Game (GMU) 19B, Bailey agement while con- Unit guiding of ducts a substantial amount his Shepherd and in GMU 13. Both business Bailey are Alaska residents. three-day meeting July At in the a regu- adopted emergency a of number Board hunting in restricting moose the of lations GMUs, including units 13 and 19B. certain particular, 13 to the Board closed GMU P.C., Fairbanks, Thorgaard, Terrence H. by hunting nonresidents and estab- moose appellants cross-appellees. and for the fifty-inch antler limitation on lished a Nauheim, Gen., Atty. An- Robert C. Asst. by in GMU taking of moose nonresidents Botelho, Gen., Atty. chorage, M. and Bruce 19B. Juneau, cross-appellants. appellees State, According changes were to the these by holding this in prompted court’s McDo C.J., RABINOWITZ, MOORE, Before (Alaska 1989) (hold well v. MATTHEWS, COMPTON ing pref rural unconstitutional the resident EASTAUGH, JJ. Alaska’s former subsis provisions erence of law), by depressed popula tence moose OPINION An the winter of 1989-90. tions after harsh MOORE, hunting Chief Justice. ticipating increased subsistence populations be pressure on certain moose challenge a con- case This involves potential of subsistence cause the numbers 16.05.255(d), stitutionality which of AS states consequence increased as hunters been adopted by the Alaska regulations that McDowell, these the Board concluded that (the Board) provide “must Board of Game de populations could not sustain the moose moose, deer, elk, and taking by residents and non mand for moose both family or by personal caribou residents residents. taking consumption preference over has statute, subsequently Board authorized The Pursuant to this nonresidents.” Department of the Alaska Commissioner regulations restricting the adopted Board emergency make these Fish and Game to certain hunting of nonresidents moose regulations permanent. regulations prior See AS 16.05.270 effect to the may delegate (providing that the Board its July meeting Board’s were still effect authority adopt regulations grounds permanent regula- Com- on the missioner). 1990 the November Commis- properly adopted. tions had not been The delegated authority sioner this exercised opposed State motion and filed cross- adopted permanent identical to summary judgment dismissing motion for adopted emergency regulations constitutional The also claims. moved August spring its Board in 1990. At guides’ arguments concerning to strike the adopted regulations meeting, the Board then permanent regulations being outside substantially adopted by identical to those scope guides’ complaint. The the Commissioner.1 granted this latter motion. *4 immediately amended complaint their to en- suit, August Shepherd filed 1990 chal- compass claim. the new validity emergency lenging regula- of the the regulations alleged tions.2 He that the had In June 1992 the denied court the “automatically repealed” been when the guides’ partial summary second motion for publish regula- to Board failed notice the judgment granted and the State’s cross-mo days adoption ten tions within of their as summary judgment. tion Ruling for from required under AS 44.62.250. also bench, the the court the dismissed Com alleged regulations the “and that the statutes claim, finding merce Clause that unharvested upon they based, apparently which AS game is not an article of interstate commerce 16.05.255(d) 16.10.256,” and invidiously AS impact and guides’ that the statute’s the discriminated between Alaska residents and interstate business was de minimus. The guides nonresidents and between the resi- court guides’ privileges also dismissed the nonresidents, guides dents and the there- challenge, finding and immunities that the alia, by violating, Privileges inter the guides standing had insufficient assert to the Clause, Clause, Immunities the Commerce that, any event, claim the United Equal and the Protection of the Clause Unit- States Court decision in Baldwin v. Bailey ed States Constitution. Commission, Fish & Game (the guides) complaint later amended their to S.Ct., 1852, 56 L.Ed.2d was dis- allegations include positive claim. of the Equal statutes violated the Protection and Applying scrutiny, minimal rational Equal basis Application the Alaska Clauses of Con- equal the court also dismissed the stitution. federal protection challenge. The court found that suit, filing guides After the moved for a the preference personal statute’s for and con- injunction preliminary prohibiting enforce- sumptive trophy legiti- use over use was emergency regulations. ment of the The goal. mate The state court further conclud- superior court denied motion. the Subse- ed that rationally the statute was related to quently, guides partial the moved for sum- goal. Finally, that the court that concluded mary judgment on their claim that the emer- Equal the statute did violate Alaska’s gency regulations improperly were noticed Protection In so the court holding, Clause. repealed automatically and therefore under scrutiny applied sliding scale set forth granted AS 44.62.250. The court Anthony, in State v. this motion. 1991). guides The then filed a motion second for partial summary judgment, requesting Finally guides’ that the court denied the motion the court summary judgment respect declare that violat- with permanent regulations adopted subsequent ed the federal and state constitutions. The requested motion July meeting also that the court declare Board. The (AAC) 85.045(11), (17) reopened 1. In 1993 the Board GMU 13 to non- Administrative Code (1993). resident moose hunters on same basis as Regulations governing resident moose hunters. unchanged. Bailey joined shortly GMU 19B have the suit remained 5 Alaska thereafter. adopted by Department of Fish ulations presented no guides had ruled that the by ... of va- or the Board challenge presumption and Game in 1990 evidence court further regulations. Spring meeting.” The The court lidity during its improper, summary judgment motion, was guides that noted and the granted the State’s opportunity would have since “the State complaint to con- immediately amended their missing facts as to fill in some of claim. pleadings to the new form their whether or not public hearing [sic] notice authority expired.” had commissioner’s argues appeal, Shepherd that On granting a third mo- the motion to strike. guides subsequently filed court erred The alleging summary judgment, partial by requiring that tion He maintains regulations had never emergency amended, improperly the court complaint be regula- re-adopted permanent validly been statutory rebuttable brought into effect the its third cross- then filed tions. adop requirements for presumption that all judgment. summary October motion for 44.62.100. been satisfied. See AS tion had motion, granted the State’s 1992 the court disagree. We presented no finding 44.62.100(a) provides: Alaska Statute presumption of va- evidence to overcome *5 lidity. regula- copy of a filing of a certified The stipulation, governor into a raises parties by

The then entered lieutenant tion ... the dismissing with approval, with the court’s presumption! ] that the rebuttable remaining claims. guides’ prejudice all of the (1) duly adopted; it was entry of final parties then moved for Both (2) duly made available filed and of attor- it was judgment, requesting each an award judgment day and hour public inspection court entered final at the ney’s fees. The for it; both dismissing guides’ the claims and denied [and] on endorsed fees, finding attorney’s parties’ requests for (3) chapter and requirements of this all liti- public interest guides were regulation relative to the regulations the prevailed. had that neither side gants and complied with.... have been This followed. the Lieuten- the As demonstrated II. DISCUSSION copy of these a certified ant Governor filed Thus, the stat- July 1991. regulations on Issues A. Nonconstitutional triggered regardless was utory presumption motion to strike 1. The State’s issue was in which this manner partial sum- In second motion for their the court. brought before argued that the mary judgment, guides the ease, or superior court’s any the invalidating the decision superior court’s va challenge to the striking guides’ the der effectively revived the emergency regulations regulations was a lidity permanent the regulations governing GMUs pre-July 1990 argu guides’ limiting the proper means of regula- permanent the and 19 and that original set forth their to the claims of ments adopted by the Commissioner tions later brief, notes in its pro- the State complaint. Board were As the Fish and Game their com grounds, immediately the amended cedurally guides these invalid. On the claim, they declare that requested encompass the court to their new guides plaint to during still valid regulations were pre-July to brief the issue opportunity had an litigation, law. subsequent course of judgment summary for motion their third and moved opposed the motion The State reg permanent validity addressed concerning guides’ arguments strike the Thus, only effect of “the depth. ulations ar- permanent regulations. orderly for an provide ... was the order allege any “failed to gued guides to the presented of the issues consideration” relief in their any claim for facts or make reg- validity court. challenging the complaint superior

2. The court's right June or- lished their summary judgment denying partial der summary judg- this issue.4 ment to the B. Constitutional Issues June 1992 the court is Shepherd appeals court’s sued an stating order plaintiffs’ that “[t]he 16.05.255(d), determination that AS on its partial motion summary judgment on the implemented by face and as regulations adequacy issue of the of the state’s notice of above, discussed is consistent with the Unit the Board of hereby Game’s ed States and Specifi Alaska Constitutions. denied.” This order in response was cally, Shepherd asserts that the statute vio following guides’ statement in the second mo Equal lates the Protection Clause and the summary judgment: tion for “[The] notice Application Uniform Clause of the Alaska published that was provide, did not as re Equal Constitution and the Protection 44.62.200(a)(1) quired by AS ‘a statement of Clause, the Commerce Clause and the Privi time, place, and nature proceedings leges and Immunities Clause of the United adoption regulation’ ... of the com States Constitution. This court exercises its missioner.” independent judgment reviewing constitu The court set forth from the bench the questions. tional Knight, Sonneman v.

basis for its order. The court “nothing found 1990). admissible in the challenge record that would presumption validity regula- of those controversy Actual tions.” See AS 44.62.100. The court further issue, As a threshold the State as stated that “the State oppor- would have an Shepherd’s serts that challenge constitutional tunity to fill in missing some of the facts as present does not controversy ap actual *6 to notice.... So partial [the] motion for propriate judicial for determination. The su summary judgment’s denied on that basis.” perior guides court ruled that the had estab justiciable lished the existence of a contro Shepherd by issuing contends this versy under Asplund, v. 458 P.2d order, Jefferson the court “ruled that the then-current (Alaska 1969).5 For the first time on regulations adequately had been noticed de- appeal, argues the regulations State that the spite the fact that the issue had never been adopted implement issue were to the sub addressed and parties.” briefed the We priority sistence set forth in AS 16.05.258and disagree. While is correct in not- that sug had offered no evidence ing point that at that litigation, in the little gesting regulations that the promulgat were paid attention had been to the issue of notice 16.05.255(d). pursuant ed to AS respect with permanent to the regulations,3 the properly court’s order interpreted only is argument The State’s is inconsistent with a finding guides as that the had not estab- flatly rejected. the record and must be The Shepherd's 3. assertion that the 5.Asplund provides: issue of notice had never been parties addressed the is incor- justiciable controversy distinguished A is thus rect, as it ruling is clear that the court's inwas dispute hypothetical from a difference or of a (however brief) response challenge the to character; or abstract from one that is aca- adequacy guides' of notice set forth in the second controversy demic or moot. The Moreover, must be defi- summary judgment. motion for the concrete, touching legal nite and the finding guides court was relations correct in that the parties having support legal offered no of evidence in adverse of their assertion interests. It inadequate. that notice was controversy must be a real and substantial admitting specific through relief a decree of Indeed, guides' the order did not foreclose the character, distinguished a conclusive from opportunity fully litigate validity to the opinion advising what the law would be permanent regulations. guides' The third mo- upon hypothetical a state of facts. partial summary tion judgment for and the (Alaska 1969) (quoting summary judgment State's third cross-motion for Haworth, Aetna Ins. Co. v. 300 U.S. Life issue, directly addressed the the issue was re- 461, 464, (1937)). 81 L.Ed. 617 solved in favor of the and the do not that decision. under the federal and state regu- dence because replete is with evidence record special interest has adopted pursuant to constitutions state were lations at issue boundaries fish and wildlife within its The and AS 16.05.258. both AS 16.05.255 grant prefer- alloeational is entitled to argued court expressly State 16.05.255(d) recreational users. authority ences to state resident provided that AS addition, in re- at issue. Group Action Montana Outfitters First of Inter- sponse to the Plaintiffs’ Set Commission, F.Supp. Fish & Game recognized that the dis- rogatories, the State nom., (D.Mont.1976), Baldwin v. sub aff'd statutory on ... puted “action was based Commission, 371, 98 Game Fish & 16.05.255(d).” Thus, authority including AS a Montana 56 L.Ed.2d 354 S.Ct. court’s conclusion we affirm big game guide several out-of- resident controversy justiciable was an actual challenged the constitutionali state residents constitutionality presented regarding the restrict ty regulatory a Montana scheme 16.05.255(d). AS hunt elk. 417 ing rights nonresidents’ regulatory F.Supp. at 1007. Under ownership naturally occur- 2. State scheme, pay required to nonresidents were ring fish wildlife twenty-five times as much to from seven to to hunt elk. Id. The district presented an obtain a license Although Shepherd has square rejected challenge, hunters’ arguments, they array have of constitutional give ly holding that the state was entitled to a common theme. He contends respect to preferences to its residents with may against nonresi not discriminate hunting. residency hunters because recreational dent recreational trophy distinguishing provides no basis opportunity conclude that where We food: from those who hunt for activity hunters enjoy is created a recreational state, by a where there is no supported or statute, challenged activity any funda- nexus between not subsistence. This about about very its nature right, mental and where qualify as “sub- Alaska hunters who do enjoyed by por- activity can be users,” not at all need the sistence who do it, enjoy a state tion of those who would harvesting, being they are accorded meat the residents may prefer its residents over preferential treatment over non-Alaskans. states, enjoyment or condition the of other non-residents, particularly non-resi- Some *7 terms as it upon such of the nonresidents military, grades in the lower of the dents fit. sees officially actually are below the defined Alaskans, poverty. on the level of Some Id. at 1010. hand, guides. Do choose to hire other appeal, the United States On primary purpose to they this with the do judgment of the district affirmed the Court obtaining put meat on the table? Or Comm’n, v. Fish & Game court. Baldwin Even just an incidental benefit? meat 1852, L.Ed.2d 354 56 436 U.S. 98 S.Ct. they guides, hire Alaskans when don’t that, (1978). traditionally, The Court noted pay more for the frequently can and do their own held in trust for states owned or equivalent than an expenses of their hunt occurring and wildlife naturally fish citizens super- in cost amount of beef would required to allow nonresidents were not hunting value of market. The essential 384-85, 98 Id. at in their harvest. to share hunters, whether res- most nonsubsistence see, 1860-61; e.g., v. Connecti Geer S.Ct. at nonresident, pleasurable is the ident or 600, 604-05, 519, 530, cut, 16 S.Ct. 161 U.S. hunt. experience of the (1896) may (holding that a state 40 L.Ed. 793 enjoy the benefits of to hunt- allow its citizens responds that nonresident The State them in common belonging to trophies property while primarily hunt to obtain ers permitting the time at the same for food. “without generally hunt resident hunters in participate that states to of other parties is anec- citizens offered both The evidence own”); McCready they see also do not no need to which suppositional. We have dotal and (1877); 248 24 L.Ed. Virginia, 94 U.S. concerning evi- v. any this draw conclusions 40 (C.C.E.D.Pa.

Corfield, Coryell, 6 F.Cas. 546 to pheasants. the State an abundance of 1825) (No. 3,230). S.D., 464, 44, N.W.2d, The Court went on to 73 at at 217. recently, power observe more 386-87, Id. at 98 at S.Ct. prefer states to their own residents concern That the natural resources of the state ing the harvest of fish and had been state, belong to the which controls them as limited in where the cases asserted state state, people explicit trustee for the of the power paramount inwas conflict with federal VIII, in the Alaska Constitution. Article Baldwin, 385-86, interests. at U.S. provides: section para S.Ct. at 1861-62. In the absence of legislature provide shall for the uti- interests, however, mount federal the tradi lization, development, and conservation of tional rule still obtains: all belonging natural resources Appellants contend the doctrine on State, waters, including land and Cmfield, McCready, which all Geer people. maximum its benefit of remaining vitality. relied has no We do agree.... added.) The fact that VIII, the State’s (Emphasis Article section 3 control over wildlife is not exclusive and provides: absolute in regulation the face of federal occurring Wherever in their natural federally protected and certain interests state, fish, wildlife, and waters are re- compel does not the conclusion that it is people served to the for common use. meaningless in their absence. VIII, And provides: article section 4 We need look no further than decisions Fish, forests, wildlife, grasslands, and all of this Court to know that this is so. It is replenishable other belonging resources true that in Toomer v. Witsell the Court in utilized, developed, the State shall be 1948 struck down a South Carolina statute yield princi- maintained on the sustained requiring nonresidents of pay the State to ple, subject preferences among benefi- $2,500 a license fee of for each commercial cial uses. boat, shrimp pay and residents to a fee of added.) $25, (Emphasis ground and did so on the Privileges statute violated the and Immu- Similarly, repeatedly this court has ob- Id., S.Ct., nities Clause. at served that the state acts as “trustee” of the 1161-1165. Mullaney See also v. naturally occurring fish and wildlife Anderson, See, e.g., state for the benefit of its citizens. L.Ed. 458 another commercial-live- Game, Dep’t Gilbert v. Fish & lihood years, case. Less than three how- 1990) (observing ever, Toomer, after decision so fish, “migrating schools of while inland heavily upon by here, appellants relied the waters, state, property are the held in Court dismissed for the want of a substan- people trust for the benefit of all the question tial federal from a deci- state, obligation and the authority *8 sion of the Court of South Dako- equitably wisely regulate and the harvest is holding ta that the total exclusion from state”) (quoting that of the Metlakatla Indi- that of migra- State nonresident hunters 901, Community Egan, an v. 362 P.2d tory justified by waterfowl was the State’s (Alaska 1961)); State, Owsichek v. Guide Li- special assertion of a interest in wildlife Bd., 488, censing & Control qualified that as a substantial reason for (Alaska 1988) (noting that “the state acts ‘as Kemp, discrimination. State v. 73 S.D. trustee of the natural resources for the bene- 458, N.W.2d 214 dis- ”). fit of its citizens’ missed, 923, 498, 340 U.S. 71 S.Ct. (1951). L.Ed. 667 In that The State of Alaska devotes case South Da- substan proved protection kota had tial manage that there was real dan- resources and ger flyways, breeding that grounds, ment of fish and wildlife. As the trustee of nursery state, and geese people for ducks and those resources would be for the subject hunting possible to excessive required the state is to maximize for state destruction nonresident hunters lured residents the benefits of state resources. among “regulate reasonably power to commerce be scarcity, can often this cases Const, I, § art. 8. U.S. limiting the several states.” by excluding or accomplished regulatory power to granting In such cir- addition nonresidents. participation of Clause also re- Congress, the Commerce cumstances, may, arguably state to erect barri- to, power of the states to nonresi- stricts prefer state residents required See, e.g., Maine interstate commerce. dents, preferences are ers to except when such 106 S.Ct. Taylor, v. 477 U.S. paramount federal interests. with conflict (1986). 2446-47, 91 L.Ed.2d issues Federal constitutional superior dismissed the The court Privileges a. and immunities claim, concluding Clause guides’ Commerce 16.05.255(d) un- Shepherd challenged AS game an article of “unharvested is not that Privileges Immunities Clause of der the court further interstate commerce.”6 IV, Const., art. constitution. U.S. the federal only arguable impact on explained that “the claim § this superior 2. The court dismissed guide’s comes from the commerce interstate First, the court found that grounds. on two To the extent that that’s [sic] business.... standing. The not established Shepherd had I on interstate commerce infringement an standing assuming further found court minimus and not addressa find it to be de established, the United States Su- had been argues that the appeal, Shepherd ble.” On disposed preme decision Baldwin Court’s against inter facially discriminates statute affirm the Shepherd’s claim. We commerce, may guide be state respects. court in both specific guided hunt to a permitted to offer a resident, offering the prohibited from but be in-state now settled law that It is very hunt to a nonresident. same standing challenge a state lack residents Shepherd’s argument municipal under or ordinance statute against interstate com- facially discriminates Privileges Immunities Clause. United the stat- the effect of merce mischaracterizes Mayor v. & Bldg. Trades Council & Constr. regulations promulgat- ute. The statute Camden, 208, 217-18, Council of professional regulate thereunder do not (1984); ed 1027-28, 79 L.Ed.2d 249 104 S.Ct. game. As the taking of wild guiding, but the City Chicago, 992 F.2d v. J.F. Shea Co. brief, activity is “an in its this *9 Inc., Constr., 787 Transp. v. Enserch Alaska standing Commerce guides to raise the 624, (Alaska 1989), it is not sufficient fully 630 Although P.2d was not this issue Clause issue. standing law. interest-injury under federal confer appeal, asserts in a footnote the State briefed on Shepherd’s Commerce guides we hold extremely have Because that "it is doubtful merits, we will not on the claim fails Clause standing the federal constitutional to assert by the 16.05.255(d).” standing framed issue the federal by address rights alleged AS to be violated Cash, v. 837 Cash Architects See Wirum & State. Emphasizing does not discrimi that this statute 1992) (this 692, may argues guides, against professional the State nate inadequately an issue which is to address type injury decline suffered even if the of economic appeal). briefed on interest- is sufficient to confer 42 385, 1156, Taylor, In Maine v. Court

merce.” 334 U.S. 68 S.Ct. (1948) added). 1161, (emphasis analysis in 92 L.Ed. 1460 set forth the to be used address- Oklahoma, Likewise, Hughes in ing v. Court Dormant claims: Commerce Clause any animal ... is lawful- “[w]hen stated that distinguished Court has between [T]his ly purposes of food or other killed for state statutes that burden interstate trans- man, of com- uses of it becomes article only incidentally, actions and those that 329, 1727, 322, 441 99 merce.” U.S. S.Ct. affirmatively against discriminate such (1979) 1732, (adopting view of 60 L.Ed.2d 250 in the first transactions. While statutes Connecticut, 519, dissent in v. 161 U.S. Geer only if group violate the Commerce Clause (1896)) 600, (emphasis 16 40 L.Ed. 793 S.Ct. they impose the burdens on interstate added). “clearly are in relation to trade excessive express- benefits,” lower federal courts have putative Several in local statutes ly game is not an subject found that unharvested group to more demand- second are article of commerce for Dormant Commerce ing scrutiny.... a state law is [0]nce Ruch, purposes. In Terk v. 655 Clause against shown to interstate discriminate (D.Colo.1987), F.Supp. involving 205 a case a practical commerce “either on its face or in statutory preference to effect,” state residents over on the burden falls hunting bighorn sheep in the nonresidents demonstrate both that the statute “serves goats, and mountain the court dismissed the legitimate purpose,” a local and that this claim, plaintiffs’ holding Commerce Clause purpose could not be served as well sheep goats that wild were not articles of nondiscriminatory available means. Similarly, Tangier in commerce. Id. at 215. (citations 477 106 at 2447 U.S. S.Ct. Douglas, v. Sound Watermen’s Ass’n 541 omitted); Clajon Corp. see also Prod. v. Pet (E.D.Va.1982), F.Supp. 1306 the court (if era, F.Supp. (D.Wyo.1994) “[plaintiffs stated that have not established regulation effects of on interstate commerce that unharvested crabs are articles of com- incidental, only regulation presump is Thus, merce.” the court was “not convinced valid). tively [Virgi- that the Commerce clause reaches a above, regula- As discussed the statute and prohibit a nia] law whose effect is to nonresi- regulate only taking tions at issue of wild catching dent commercial from crabber crabs game, affirmatively which does not discrimi- Virginia.” Id. at 1306. against nate interstate commerce. The ef- game That unharvested not an is Shepherd’s provisions fect of these busi- particularly article commerce is clear guide only a ness as an incidental effect game, taking, where the after its is still not Thus, regulation. an otherwise valid AS destined for interstate commerce. See Hick 16.05.255(d) violates the Commerce Clause Orbeck, 518, 533, lin U.S. imposed if the burdens on interstate (1978) (Commerce 2482, 2491, 57 L.Ed.2d 397 “clearly commerce are excessive relation ability pre circumscribes a Clause State’s putative local benefits” of the statute. fer its own citizens the utilization of “natu Clajon Corp., F.Supp. at 858- See Prod. ral ... resources destined interstate com (state licensing granted scheme which a ”) Terk, added); (emphasis merce 655 preference to resident hunters over nonresi- F.Supp. (noting at 215 under Colorado facially discriminatory dent hunters was not law, illegal game sheep). it is to sell wild purposes). for Dormant Commerce Clause Alaska, purchase the sale or of moose is Church, In Pike v. Bruce 16.05.920(a) (unless prohibited. permit S.Ct. 25 L.Ed.2d the Su- regulation, person or ted statute shall preme “clearly Court discussed the exces- “take, sell, possess, transport, offer to sive” test. sell, purchase ... purchase, or offer to found, any part game”). legitimate purpose of ... If local then or We therefore degree. question one of And affirm the court’s conclusion that becomes game is not an article of com the extent of the burden that will be toler- unharvested *10 depend on the nature of merce. ated will of course involved, trophy by nonresidents constituted and on whether over use local interest the legitimate purpose.9 The court fur- promoted as well with a lesser state it could be impact interstate activities. ther found that the classification scheme set regulations forth in the statute and bore 142, 90 at 847. Id. at S.Ct. relationship goal. rational to that case, present the asserts that In the State view, popu- purpose of In our the fact that the moose preference serves the the resident in the at issue are insufficient conserving wildlife resources for Alas lations GMUs scarce hunting by unquestionably repre to tolerate unlimited recreational ka residents. This Taylor, both resident and nonresident recreational legitimate sents a state interest. See (a hunters, together in- at state taken with the state’s 477 U.S. at regulatory authority pro to terest as trustee of its wildlife for the benefit “retains broad residents, justifies restriction. safety of its citizens and of state tect the health and resources”); integrity natural Com As the district court stated DeMasters v. of its (D.Mont.1986): Montana, F.Supp. 21 Entry Apoke mercial Fisheries Comm’n (Alaska 1980) (con dak, 1255, 1265 special It is the interest of Montana’s legitimate purpose). of wildlife is servation at citizens in the state’s elk herds that is statutory be- the root of the distinction presented evidence of in- The State also and nonresident hunters. tween resident resources, upon wildlife both creased demand prohibited preferring Montana is not from by hunters. In ad- resident and nonresident in allocat- its residents over nonresidents dition, also notes as a result of hunting opportu- ing access to recreational popula- the harsh winter of moose irrationality in Mon- nities. There is no depressed tions the relevant units were legislative to utilize limita- tana’s decision prior adoption regulations to big- tion of the number of nonresident Moreover, noted, the trial court issue. game as an effective man- hunters placed on interstate commerce burden agement tool. regulation restricting nonresident moose hunting in certain GMUs is de minimus. omitted). (citations Id. at 24-25 Thus, superior we affirm the court’s dismiss- 4. Alaska constitutional issues Shepherd’s claim.7 al of Commerce Clause Shepherd contends AS protection equal

c. Federal 16.05.255(d) Equal Rights and violates the appeals superior Opportunities of the Alaska Constitut Clause argues that the statute vio ion.10 He also court’s determination Application Equal lates the Clause does not violate the Protection Clause Uniform Both of these conten Applying Alaska Constitution.11 of the Fourteenth Amendment.8 scrutiny, merit for the same reason. Alaska tions lack rational basis similarly are not preference personal residents and nonresidents concluded that rights respect to their of access family consumptive by residents situated with uses brief, supra, we do not reply As noted in footnote asserts that the claim. 7. In his standing implicated "by the federal issue. much address Commerce Clause is not so meat, shipment of moose but the interstate transportation hunters to and from interstate Equal Rights Opportunities Clause 10. The only an incidental ef- Alaska.” This is likewise part: provides, in "All the Alaska Constitution commerce, subject to the same fect on interstate equal rights, persons equal and entitled analysis forth above. and result set protection opportunities under the law.” Const, I, § art. 1. Alaska Equal the Fourteenth 8. The Protection Clause of provides: deny "No shall ... Amendment state Application provides: Clause 11. The Uniform jurisdiction equal any person within its governing the use or dis- "Law and Const, protection U.S. amend. of the laws.” equally apply posal shall of natural resources XIC, § 1. similarly persons with reference to all situated purpose subject to be served matter and Const, VIII, regulation.” art. Alaska the law or court concluded that the 9. The § standing equal protection to raise a federal *11 44 game “manifestly of

as recreational users fish unreasonable.” Hillman v. Na- Ins., 1321, tionwide Mut. Fire 855 P.2d Alaska. 1326 (Alaska 1993); Lind, 873, Tobeluk v. 589 P.2d Equal Rights Opportunities (Alaska 1979). requires Clause of the Alaska Constitution equal only repeatedly pre treatment are We have that a for those who simi held larly vailing party party situated. Alaska Assur is the “who has See success Pacific (Alaska Brown, fully prosecuted against ance Co. v. 687 P.2d or defended the ac 1984) tion, (right equal treatment of those simi the one who is successful on the ‘main larly general principle underlying is issue’ of the action situated ‘whose favor the Equal Rights Opportunities judg Alaska’s decision or verdict is rendered and the ” Clause); V.M.C., Gateway Borough Adoption Ketchikan v. ment entered.’ Breed, (Alaska 1981) (Alaska 1974) (citations 639 P.2d 795 n. omitted). (“[e]qual protection requires party prevails that those simi each Where on a issue,” larly equally”). situated be treated “main the court retains the discretion Tobeluk, any not to award fees and costs. Likewise, Application the Uniform Clause 589 P.2d at 877. explicitly requires equal only treatment persons “similarly situated with reference to case, parties argue this both subject purpose matter and to be served they prevailed on the main issue of the case. regulation.” the law or Alaska Const. art. successfully asserts that he estab VIII, 17; State, Dep’t § see Gilbert v. Fish emergency regulations lished that Game, (Alaska 1990) & 803 P.2d adopted July Board 1990 were (Uniform Application apply Clause does not improperly noticed and therefore “automati groups to two different of fishermen who cally repealed” under AS 44.62.250. The fisheries). participated in two different successfully State asserts that it established procedural validity the constitutional and

Resident and nonresident recreational permanent regulations. The trial court users of Alaska not fish simi- parties’ attorney’s dismissed both motions for above, larly situated.12 As noted subsection fees, apparently finding party that each B.2., the state owns these resources and is prevailed disagree. a “main issue.” We required manage them as trustee for the preference benefit of its citizens. The whole, Taking litigation as a we believe respect Alaska residents with to natural re- “manifestly that it is unreasonable” to char explicit sources is in the state constitution procedural validity acterize the of the emer and serves to differentiate resident from non- gency regulations as a main issue of this groups. resident user Shortly emergency regula case. after the adopted tions were and before the Attorney’s C. Fees original complaint, filed their the Board dele gated authority Both and the State to the Commissioner of the finding par court’s that neither Department Alaska of Fish and Game to ty prevailed attorney’s purposes. emergency fees make regulations perma these Designation prevailing party “is com nent. Both the Commissioner and the Board subsequently mitted to the broad discretion of the trial adopted permanent regulations Apex Sys., court.” Control Inc. v. substantially emergency reg Alaska identical to the Mechanical, Inc., procedural validity ulations. The 1989). This court emergency regulations will interfere with the peripheral prevailing party trial court’s determination of litigated by parties the central issue —the 16.05.255(d). it constitutionality status unless abuse of discretion or of AS De Cf. See, Stores, Inc., Concluding similarly e.g., that two classes are not Safeway dence. Gonzales necessarily implies (Alaska 1994); situated gal that the different le- Anthony, 882 P.2d 389 State v. justified by treatment of the two classes is (Alaska 1991). generally 810 P.2d 155 We have differences between the two classes. Such a cases, analysis only used this abbreviated in clear analysis conclusion reflects in shorthand the ditionally tra- of which this is one. equal protection jurispru- in our used *12 (Alaska Servs., Co., P.2d 980 Leasing P.2d Social Liberty Witt v. 1982). 1972) (Aaska (reversing de trial court’s pre party was the that neither termination III. CONCLUSION party a vailing party where one received analysis, the above we affirm the $17,736.11 judg Based on judgment offset a $93.64 handling case in its superior court’s of this party). there in favor of the other We ment entirety attorney’s except on the issue of reverse the court’s determina fore requiring not err in fees. The court did prevailing- not the tion that the State was guides complaint to amend their to encom- party. original pass other than the argues also that the court emergency regulations, nor did the court err public a concluding in that he was not erred summary judgment guides denying in public liti litigant. As a interest interest permanent regu- on the issue of notice immune from a fee gant, Shepherd would be lations. See, e.g., An award in favor of the State. finding in The court was also correct McCabe, 986, 989, chorage 568 P.2d v. guides’ claims. the State on the constitutional 1977). finding to a A trial court’s as standing, an Aas- Shepherd does not have as litigant’s public interest status is reviewed resident, challenge un- ka the abuse of discretion standard. Citi under Privileges federal and Immunities der the McAlpine, v. zens Coalition Moreover, the United States Su- Clause. (Alaska 1991); Anchorage Daily News disposi- in Baldwin is preme decision Court’s Dist., 404 n. Anchorage 803 P.2d Sch. privileges and immunities claim. tive of his (Alaska 1990). claim also Shepherd’s Commerce Clause fails, article game unharvested is not an News, since Anchorage Daily this court set In commerce and the restriction of interstate satisfy litigant that a must forth the criteria right guide nonresident hunters is a his litigant: public interest to be deemed regula- permissible incidental effect of the (1) designed case to effectuate Is the equal protection claims also Shepherd’s tion. strong public policies? hunters, and fail. Resident and nonresident (2) plaintiff If succeeds will numerous similarly with guides, not situated their people from the lawsuit? receive benefits re- respect to access to Aaska’s wildlife (3) only private party have been Can sources. bring expected to the suit? Finally, although the court did not abuse (4) purported public interest Would the determining its discretion litigant have economic incentive sufficient litigants, we hold public interest were not if action involved to file suit even finding erred in that the court importance? lacking general narrow issues party. prevailing was not satisfy all party at 404. A must REVERSED, AFFIRMED, part, public qualify as a interest four criteria to part, and REMANDED. McAlpine, 810 P.2d at 171. litigant. case, RABINOWITZ, Justice, Shepherd argu concurring. present In the requirements. three ably meets the first analysis of disagree I the court’s with However, satisfy Shepherd cannot the fourth protection claim under Shepherd’s equal big game guide ad requirement. As a who Shep- analyzing In Aaska’s constitution. mittedly portion of his does a “substantial claim, Aaska’s states that the court herd’s moose guiding ... nonresident business equal treat- “requires equal protection clause Management Unit hunters within Game similarly who are situat- only for those ment 19B,” primarily Shepherd was motivated that “[Resi- then concludes ed.” The court his own economic litigate concerns for users of recreational dent and nonresident similarly is not entitled to livelihood. Thus situat- are not Aaska fish litigant explains Anchor public interest status. See ed.” footnote News, 404; “Concluding two classes are age Daily 803 P.2d at Sisters follows: necessarily implies that the similarly Providence, situated Department Health & Inc. v. legal equal protection different treatment of the two classes is our clause. Such a determi- justified by the differences between the two simply begs question nation of whether Thus, disposes Shep- the court classes.”1 the classification itself is reasonable and applying sliding herd’s claim without justifies disparate it whether treatment. view, my apply scale we test.2 should Professor Laurence Tribe notes that under sliding “whether a scale test and determine equal protection jurisprudence, federal legitimate disparate reason for treatment ex- *13 virtually always has Court consid- ists, and, reason, given legitimate a whether legislative ered the reasonableness of the enactment bears a fair and substantial administrative classifications. Laurence H. relationship to that reason.”3 Gonzales v. Tribe, § American Constitutional Law Inc., (Alas- Stores, Safeway 882 P.2d (2d 1988). effect, at 1438 ed. To this he 1994). ka states as follows: previously disposed un- We have of claims original conception The Court’s of the equal protection der the Alaska clause after however, required, “reasonableness” was determining groups that two are not similar- very regulatory provision limited: no was ly explicitly applying situated without repugnant equal protection long to as as it However, view, sliding my scale test.4 in restrictions, “place[d] under the same simply determining that residents and non- subjected] burdens, penalties similarly to like residents are not situated inade- quately analyzes the prohibi- issue this case under all who ... embraced its [were] agree may 1. While I purpose there be cases in which ends must be much closer. If the can obviously accomplished by the classes at issue are so different that be tive, a less restrictive alterna- "implied analysis” suggested by the court is the classification will be invalidated. appropriate, agree appropriate (Alaska 1991) I do not that it Anthony, is State v. 810 P.2d Brown, for the classification in this case between (quoting resi- Alaska Assurance Co. v. Pacific (Alaska 1984)). dents and nonresidents. I note that in Alaska Assurance Co. v. Pacific right equal protection 3. The constitutional to re Brown, (Alaska 1984), 687 P.2d 264 a case cited quires governments that state and local treat by majority, applied sliding we our scale test Gonzales, similarly those who are situated alike. to a classification contained the Workers' considering equal protection 882 P.2d at 396. In Compensation Act which differentiated between cases a court must determine whether two purposes residents and nonresidents for of deter- groups people differently of who are treated are mining compensation the amount of workers' similarly equal situated and thus entitled to treat benefits. Id. at 269-74. This court concluded effect, ment. Id. To this at the low end of the that the classification was unconstitutional. Id. legislatively scale this court reviews created clas at 274. "by asking legitimate sifications whether a rea analyzing equal protection exists, and, 2. issues under the disparate given son for legitimate treatment Constitution, reason, applies Alaska this court a three- whether the enactment bears a step sliding scale test: relationship fair and substantial to that reason.” Id. First, weight it must be determined ... what should be afforded the constitutional interest impaired by (Alaska 1994), challenged enactment. The 4. In Smith v. 872 P.2d 1218 important disposed equal protection nature of this interest is the most this court of an claim fixing appropriate upon discretionary variable in level re- of based its conclusion that mandatory parolees similarly view .... are not situated for Second, purposes receiving in-person hearing an be examination must undertaken purposes challenged eligibility of the served stat- determine their for release. Id. at Beirne, Depending ute. mined, on the level of review deter- 1226-27. In Moore v. 714 P.2d 1284 (Alaska 1986), may required appli the state be to show this court concluded that objectives legitimate, public that its were at the low cants for adult have assistance who been continuum, or, high eligible end of the at the end of found to receive interim assistance and scale, legislation applicants was motivated who have been found to be disabled compelling similarly setting purposes state interest. situated for Third, an evaluation of the state’s interest in the amount of assistance. Id. at 1287. And in Breed, particular employed Gateway Borough, means to further its Ketchikan Alaska (Alaska 1981), goals must be undertaken.... At the low end P.2d 995 this court determined scale, sliding light plane seaplane we have held that a sub- that those who dock a at a relationship stantial between means and ends float and those who land at the Ketchikan Inter constitutionally adequate. higher Airport similarly At the end national are not situated for scale, requiring landing purposes the fit between the means and fees. Id. at 996. wild- tions; preserving the the enactment is conserve State’s recognizing and thus engaged equality among those principle of life resources for Alaska residents use But [regulated activities.]” in the same supported by purpose food. This several nondiscriminatory ap- view of this narrow provisions of the Alaska Alas- Constitution. was plication the established class Const, within VIII, Finally, §§ ka art. 3 & content, empty of since discarded as soon purpose must bear a fair and substan- State’s differently by treated persons or activities fur- relationship tial means of State’s very be could for that reason government thering purpose. Based on the relevant Unaccompanied “the same.” deemed not Constitution, provisions of the Alaska independent per- of when by any measure residents and non- distinction drawn between inherently equivalent, or acts were sons bears a fair and residents AS virtually scope original afforded no test pur- relationship to the substantial State’s content, equal pro- provide To for review. pose conserving wildlife resources for requiring “some came to be seen as tection *14 Thus, residents to use as food. after Alaska sin- rationality in the nature of the class engaging appropriate in the constitutional out,” “rationality” tested gled with analysis, I conclude that AS ability purposes classification’s to serve equal protection under the clause valid legislative or administra- intended Alaska’s constitution. must reach and tive rule: “The courts question whether the classi- determine in a statute are reasonable

fications drawn ” purpose.... light of its omitted) (footnotes 16-1, §

Id. at Pennsylvania, 127 (quoting U.S. Powell v. FAIRBANKS NORTH STAR 992, 687, 997, 678, 32 L.Ed. 253 8 S.Ct. BOROUGH, Appellant, 305, (1888); Yeager, 308- Rinaldi v. 384 U.S. 09, 1497, v. 16 L.Ed.2d 577 86 S.Ct. Florida, (1966); McLaughlin v. 379 U.S. INC., ENTERPRISES, LAKE Ur VIEW (1964)). 283, 288, 13 L.Ed.2d 85 S.Ct. Rahoi, Rahoi, Phillip ban Vienna Thus, analy equal protection under federal Rahoi, Rahoi, Beverly sis, the reasonableness of a court considers legislative and classifications administrative two the court determines even when Fairbanks, Appellees. City of similarly situated.5 The re groups are not ENTERPRISES, INC., Urban LAKE VIEW a court consider the reason quirement that Rahoi, Rahoi, Rahoi, Phillip Vienna even more com of classifications is ableness Rahoi, Cross-Appel Beverly Appellants, equal protection pelling under Alaska’s lees, by this which has been construed clause protection of individ provide greater v. counterpart. State rights ual than its federal BOROUGH, FAIRBANKS NORTH STAR (Alaska 1991). Anthony, 810 P.2d v. Cross-Appellant. Appellee, equal protection Applying sliding scale our S-5329, S-5763 S-5819. Nos. record, appearing in this analysis to the facts equal protection I that there is no conclude Supreme of Alaska. Court ma- concur with the violation and therefore 9, 1995. June im- interest jority’s result. The individual to hunt paired right of nonresidents subject interest is

moose in Alaska. This purpose scrutiny. The articulated

minimal (1977), Hogan, 53 L.Ed.2d example, v. 457 U.S. in Schweiker 5. For 2597, 2609-11, 569, 588-93, were the classes at issue concluded that Court 102 S.Ct. to deter- (1982), similarly then went on situated but M. v. Sonoma Coun- Michael L.Ed.2d ty Superior 464, 472-73, pass Court, constitu- whether the classifications mine 450 U.S. 1200, 1205-06, appropriate federal level tional muster under 67 L.Ed.2d S.Ct. 282, 301, Florida, scrutiny. Dobbert notes (7th Cir.1993). Moreover, the Unit of interstate not involve articles that does square in Baldivin Supreme Court ed States commodity des- any or service or commerce hunting is not ly held that recreational so.” to become tined Privileges and activity protected under the federal constitu Immunities Clause Supreme Court United States Several at 1858-63. tion. 436 U.S. suggested that unharvested have cases from legally indistinguishable Baldivin is As commerce. For of interstate is not an article case, further discussion on present no Witsell, involv- a case example, in Toomer point required. this challenge to a state ing a Clause Commerce fishing, shrimp the Court commercial tax on Clause b. Commerce event, taking of that “the taxable stated said shrimp can be shrimp, occurs of the United Clause The Commerce before com- interstate entered the Congress the to have grants to States Constitution flow of law, Dep't standing see injury under state apparently found that the 6. The