Pullen v. Ulmer

923 P.2d 54, 1996 Alas. LEXIS 96, 1996 WL 479631
CourtAlaska Supreme Court
DecidedAugust 26, 1996
DocketS-7642
StatusPublished
Cited by24 cases

This text of 923 P.2d 54 (Pullen v. Ulmer) is published on Counsel Stack Legal Research, covering Alaska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pullen v. Ulmer, 923 P.2d 54, 1996 Alas. LEXIS 96, 1996 WL 479631 (Ala. 1996).

Opinions

OPINION

RABINOWITZ, Justice.

I. INTRODUCTION

Pullen and United Fishermen of Alaska, Inc. challenge an initiative designed to set priorities among different salmon harvest users.

II. FACTS AND PROCEEDINGS

In August of 1995, Appellee Fairness in Salmon Harvest, Inc. (F.I.S.H.) submitted an initiative application to the state.1 The proposed initiative provided that subsistence, personal use, and sport fisheries would receive a preference to take a portion of the salmon harvest before the remaining harvest-able salmon are allocated to other harvest users. The proposed initiative also sets a limit on the amount to be allocated to personal use and sport fisheries of five percent of the total projected statewide salmon harvest, though this limit may be exceeded for any particular species or region.

The F.I.S.H. initiative, entitled “An Act Relating to the Management of Salmon” reads in full:

BE IT ENACTED BY THE PEOPLE OF THE STATE OF ALASKA
“An Act relating to the management of salmon”
Sec. 1. PURPOSE (a) This act provides that, after maintenance of salmon stocks at sustained yield levels is assured, subsistence, personal use, and sport fisheries shall receive a preference to take a portion of the harvestable surplus of salmon stocks. Subsistence, personal use, and sport fisheries must be ensured of a reasonable opportunity to take enough salmon necessary to satisfy the harvest needs of those fisheries before other fisheries may be allocated the remaining portion of the harvestable surplus.
(b) This Act does not alter existing or establish new allocations or preferences among subsistence, personal use, and sport fisheries.
(c) This Act does not give additional authority to the Board of Fisheries or the Department of Fish and Game, but relies upon the existence of their respective authorities to implement this Act.
Sec. 2. AS 16.05 is amended by adding a new section to article 5 to read:
Sec. 16.05.735 MANAGEMENT OF ALASKA SALMON STOCKS, (a) After providing for biological escapement needs of Alaska salmon stocks, the Board of Fisheries and the department shall exercise their respective authorities under this title to reserve a priority for the harvest needs of common consumptive uses for each salmon stock, to the extent that is technically possible, prior to allocating a portion of the harvestable surplus to non-priority uses along the entire migratory [56]*56path of a stock. The total number of salmon, without regard to the species of salmon, reserved to satisfy the harvest needs of personal use and sport fisheries may not exceed five percent of the total projected statewide harvest of all species of salmon. Personal use and sport fisheries may harvest in excess of five percent of a particular species or stock and or in excess of five percent of the total harvest in a given geographic region of the state. However, the harvest priority for personal use and sport fisheries may not exceed five percent of the total projected statewide harvest.
(b) All harvests shall be made in a habitat responsible manner. The Board shall adopt regulations establishing methods and means of taking salmon that protects salmon spawning and rearing habitat from damage that will, individually or cumulatively, result in significant reduction in the productivity of salmon stocks.
(e) In this section,
(1) “common consumptive use” means the use of salmon harvested under subsistence, personal use, or sport fishing regulations or statutes;
(2) “harvest needs” means the harvest capability, using bag limits as established by the Board and the department of all common consumptive uses based upon projected participation, and assuming a harvesta-ble surplus of salmon exists after ensuring an adequate biological escapement;
(8) “salmon” means Coho, Chinook, Sockeye, Pink, and Chum salmon that originate in or will return to spawn in Alaskan waters; salmon does not include Steelhead or other anadromous fish;
(4) “stock” means a population or aggregation of a particular species that typically possess common characteristics such as area of origin, migration patterns, run timing, habitat, and share in a common gene pool;
(5) “statewide salmon harvest” means the total projected annual harvest, in numbers of fish caught, of all combined species of salmon.

Lieutenant Governor Fran Ulmer certified the proposed initiative.2 The initiative sponsors then circulated the petition among voters and obtained enough signatures to place the proposed initiative on the 1996 general election ballot.3 Thereafter, the Division of Elections verified that the petition had the required number of signatures, and directed that the Department of Law prepare the ballot accordingly.

On November 7, 1995, appellants Harvey Pullen and United Fishermen of Alaska (Pul-len) filed suit for declaratory and injunctive relief challenging, on several grounds, the Lieutenant Governor’s certification of the initiative. More particularly, Pullen asserted that (1) the proposed bill is not a proper subject of an initiative because it would make an appropriation of the State of Alaska’s salmon resources, (2) the allocation of salmon resources of the state among common users is exclusively the responsibility of the legislature, (3) the Lieutenant Governor’s impartial summary explaining the proposed bill is misleading as to its terms and effects, and (4) the proposed classification of common users of the state’s salmon resource is underinclu-sive and unfair because the initiative denies commercial fishers equal treatment and protection, a violation of the Uniform Applica[57]*57tion clause in article VIII, section 17 of the Alaska Constitution.4 By way of relief, Pul-len sought a declaration of unconstitutionality and an injunction prohibiting the Lieutenant Governor from placing the initiative on the November 1996 general election ballot.

Thereafter, Pullen moved for summary judgment, with all parties agreeing that no genuine issues of material fact existed. Pul-len grounded his summary judgment motion on the contention that the proposed initiative is not a proper subject for an initiative and is in violation of articles VIII, XI, and XII of the Alaska Constitution as well as AS 16.45.010.

In opposition, the Lieutenant Governor argued that the proposed bill is a proper subject for an initiative because it merely creates a new priority system for the allocation of salmon resources among groups of fishers, that the allocation of salmon is not within the exclusive law-making power of the legislature, and that it does not make an appropriation by the state. F.I.S.H. in turn contended that salmon in their natural state are not property subject to appropriation. F.I.S.H. further argued, in the alternative, that if salmon are considered state property subject to appropriation, the initiative does not make an appropriation of salmon.

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Pullen v. Ulmer
923 P.2d 54 (Alaska Supreme Court, 1996)

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Bluebook (online)
923 P.2d 54, 1996 Alas. LEXIS 96, 1996 WL 479631, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pullen-v-ulmer-alaska-1996.