ROCKY L. ESTRADA, SR., STANLEY D. JOHNSON, and ALBERT M. KOOKESH, SR., Petitioners,
STATE OF ALASKA, Respondent
Petition for Hearing from the Court of Appeals of the State of Alaska, on appeal from the District Court of the State of Alaska, First Judicial District, Angoon, David V. George, Judge. Court of Appeals No. A-10893. District Court Nos. 1AG-09-00030 CR, 1AG-09-00031 CR, and 1AG-09-00033 CR (Consolidated).
John M. Starkey and Leslie R. Need, Landye Bennett Blumstein, LLP, Anchorage, for Petitioners.
Lance B. Nelson, Senior Assistant Attorney General, Seth M. Beausang, Assistant Attorney General, Anchorage, and Craig W. Richards, Attorney General, Juneau, for Respondent.
Robert T. Anderson, Seattle, Washington, for Amicus Curiae Alaska Federation of Natives.
Before: Fabe, Chief Justice, Stowers, Maassen, and Bolger, Justices. [Winfree, Justice, not participating.].
A statewide regulation authorizes the Alaska Department of Fish and Game (the Department) to specify how many fish may be taken annually under a subsistence fishing permit. Four Angoon fishermen challenged this regulation on various grounds after they were charged with taking more salmon than their permits allowed. The district court agreed with their challenge and dismissed the charges. The court of appeals reversed. We conclude that these harvest limits are regulations that must comply with the Administrative Procedure Act (APA). Because the Department promulgated these harvest limits without following the requirements of the APA, we reverse the court of appeals and reinstate the district court judgments dismissing these charges.
II. FACTS AND PROCEEDINGS
The Kanalku Lake sockeye run has long been a source of subsistence fishing for the residents of Angoon. In the years 2001 through 2005, the harvest limit for Kanalku sockeye was 25. In 2001 the Department first assessed the health of this run and determined that the fish harvest was unsustainably high given the low escapement level. Angoon residents informally agreed to a voluntary moratorium on fishing for the 2002 season, and resumed the moratorium in 2004. But the Department, after concluding that the voluntary moratorium had been ineffective, wrote in 2006 to Angoon community leaders, informing them that " [t]he annual [harvest] limit for Kanalku [would] . . . be reduced from 25 to 15 sockeye salmon." In May 2007 the Department issued a news release noting that the sockeye possession and harvest limit for Kanalku sockeye would remain at 15.
Rocky Estrada, Scott Hunter, Stanley Johnson, and Albert Kookesh were arrested on Admiralty Island, along the shore of Kanalku Bay, in July 2009 for taking more sockeye salmon than their subsistence fishing permits allowed. Each permit had an annual subsistence harvest limit of 15 sockeye for the Kanalku fishery, and the four individuals had collectively harvested 148. Estrada, Johnson, and Kookesh (the fishermen) were charged under 5 AAC 01.015(b)(1), which provides that " the numbers of fish taken for subsistence use may not exceed the limits set out in the permit." 
The fishermen moved to dismiss the charges, arguing that 5 AAC 01.015 was invalid. Citing Alaska's subsistence statute, AS 16.05.258, the fishermen contended that the Board could set harvest limits only through the adoption of regulations in compliance with the APA. Since the harvest limit had not been promulgated in accordance with the APA, the fishermen argued that it could not form the basis for their prosecution.
The district court agreed. First, the court looked to the indicia of when an agency action constitutes a " regulation," as defined in the APA. Noting that the harvest limit " makes subsistence fishing restrictions specific, subjects any contrary use to prosecution, and affects the public's use of the resource," the court concluded that the harvest limit was a ...