Lance B. Nelson, Senior Assistant Attorney General, Anchorage, and John J. Burns, Attorney General (opening brief) and Michael C. Geraghty, Attorney General (reply brief and supplemental brief), Juneau, for the Appellant.
Tony Strong, Douglas, for the Appellees.
Before: MANNHEIMER, Chief Judge, ALLARD, Judge, and COATS, Senior Judge.[*]
The Alaska Board of Fisheries often decides to prohibit fishing or restrict certain fisheries on a general basis— for example, by establishing open and closed seasons, or by defining the geographic areas where fish may be taken, or by setting catch limits, or by restricting the gear that people can use when fishing. To achieve these purposes, the Board has enacted two types of administrative regulations.
In the first type of administrative regulation, the Board of Fisheries directly specifies the applicable prohibitions or restrictions in the regulation itself. But in the second type of administrative regulation, the Board simply declares that all people who wish to participate in a particular fishery must obtain the proper permit from the Department of Fish and Game, and then the regulation authorizes the Department to attach various conditions to these permits— conditions such as catch limits, gear restrictions, time or date limitations, and the like. Thus, the permit specifies many of the limitations that apply to that fishery— and these limitations are formulated by the Department of Fish and Game, rather than the Board of Fisheries.
In the case now before us, the district court ruled that this second type of administrative regulation is unlawful. The court concluded that, under Alaska law, all such restrictions and prohibitions on fishing must be enacted by the Board of Fisheries, and these restrictions must be expressly codified in administrative regulations promulgated by the Board under the provisions of Alaska's Administrative Procedure Act (AS 44.62). Accordingly, the district court ruled that it was unlawful for the Board of Fisheries to enact regulations that purport to delegate this decision-making power to the Department of Fish and Game, or that allow the Department to impose these restrictions as conditions to fishing permits.
For the reasons explained in this opinion, we disagree with the district court. We conclude
that Alaska law does allow the Board of Fisheries to enact this second type of regulation— i.e., regulations that allow the Department of Fish and Game to establish restrictions on fishing by making these restrictions a condition of fishing permits.
The legal and factual background of this case
(a) The general legal authority of the Board of Fisheries, and the Board's enactment of the regulation at issue in this case, 5 AAC 01.015
The Alaska Legislature has created the Board of Fisheries to conserve and develop the fishery resources of this state. The Board's mission is to promote and protect the different types of fishing (subsistence, commercial, sport, and personal use), and the various types and species of fish.
To enable the Board of Fisheries to carry out this mission, the Legislature has given the Board the authority to adopt " [any] regulations it considers advisable ... for the conservation, development, and utilization of fisheries" .  More specifically, the Legislature has given the Board the authority to control or supervise all facets of fishing— such things as establishing open and closed fishing seasons;  defining the geographic areas where fish may be taken;  setting quotas, bag limits, harvest levels, and sex and size limitations on the taking of fish;  and defining the means and the methods by which people are allowed to pursue, capture, and transport fish.
(Pursuant to this authority, the Board of Fisheries has enacted hundreds of regulations found in Title 5 of the Alaska Administrative Code. Some of these regulations apply statewide, while many apply to specified geographic areas.).
As we explained in the introduction to this opinion, the Board of Fisheries has enacted two types of regulations to govern and control the fisheries within Alaska. Many of the Board's regulations directly codify— i.e., directly specify— restrictions such as seasons, harvest limits, and gear requirements for a particular fishery. But the Board has also promulgated regulations that take another approach. Regulations of this second type do not directly specify all the rules that govern a particular fishery. Rather, these regulations require people who wish to participate in the fishery to obtain a permit from the Department of Fish and Game— and the regulations authorize the Department to attach various conditions to these permits. Under this system of regulation, the permit specifies many of the limitations that apply to that fishery.
The regulation at issue in this case— 5 AAC 01.015— is a statewide regulation of this second type.
Subsection (a) of 5 AAC 01.015 declares that anyone who engages in ...