ANN ELLINGSON and JOANNE DORMAN, Co-Personal Representatives of the Estate of CHARLES HUGH DORMAN, Deceased, Appellants,
DENBY LLOYD, Commissioner, Alaska Department of Fish and Game; ALASKA DEPARTMENT OF FISH AND GAME; CLIFF JUDKINS, Chair, Alaska Board of Game; ALASKA BOARD OF GAME, Appellees
Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Sen K. Tan, Judge. Superior Court No. 3AN-10-04586 CI.
Thomas E. Meacham, Law Office of Thomas E. Meacham, Anchorage, for Appellant.
Dario Borghesan, Assistant Attorney General, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for Appellees.
Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and Bolger, Justices.
This appeal challenges the efforts of the Alaska Board of Game to control, by regulation, the movement of bison that stray outside the boundaries of two game ranches on Kodiak Island. The Board has statutory authority to determine when a domestic animal becomes " feral," and thus legally characterized as " game." Pursuant to this grant of authority, however, the Board's regulatory definition of a " feral" domestic animal must be reasonable and consistent with its authorizing statute.
The Board amended the first regulation at issue to read: " Under this section, and in accordance with the definition of 'game' [provided in statute,] (which includes feral domestic animals) . . . musk oxen, bison, or reindeer that [are] lawfully owned . . . that [are] not confined or [are] not under positive control [are] feral unless the animal is a free-ranging animal on a state or federal grazing lease."  The Board amended a second regulation to authorize the Alaska Department of Fish and Game to announce a public hunt of bison in Unit 8 -- which includes Kodiak -- by emergency order. These amendments effectively confiscated lawfully owned domestic animals, unreasonably transforming them from " domestic" to " game" solely by reference to a property boundary line.
We therefore reverse the superior court's grant of summary judgment in favor of the State and hold the contested regulations invalid. We also vacate the court's award of attorney's fees to the State.
II. FACTS AND PROCEEDINGS
Charles Dorman was one of two bison ranchers on Kodiak Island. He possessed two grazing leases from the State of Alaska issued under the authority of AS 38.05.070-.105;  his unfenced land totaled approximately 45,100 acres. Dorman ran approximately 200-225 bison on his Department of Natural Resources leases, which stretched across remote areas in the vicinity of Saltery Cove. Dorman's bulls, cows, and calves ranged in worth from $800-$4,000 each. He ...