State v. Eluska

724 P.2d 514, 1986 Alas. LEXIS 377

• Court: Alaska Supreme Court
• Decided: August 29, 1986
• Docket: S-991
• Status: Published

Opinions

OPINION

BURKE, Justice.

In State v. Eluska, 698 P.2d 174 (Alaska App.1985), the court of appeals affirmed the dismissal of charges against a Kodiak hunter, David Eluska. We granted the state’s petition for hearing.

On May 14, 1983, when the deer season was closed, Eluska was found in possession of a freshly killed doe. Eluska was charged with possessing game taken in violation of the Board of Game’s regulations.¹ In his defense, he claimed that the Board’s regulations failed to differentiate between subsistence hunting and other hunting. Id. at 176-77. Both the trial court and the court of appeals agreed that AS 16.05.-255(b)² required separate subsistence regulations. Id. at 176, 178-80.

To “remedy” the Board’s failure to adopt such regulations, the court of appeals created a “subsistence” defense:

[W]hen the trial court concludes, as a matter of law, that hunting occurs in an area in which the state has not adopted regulations pursuant to AS 16.05.255(b) providing for subsistence uses and recognizing the subsistence priority, conduct which would otherwise be a violation of a regulation adopted pursuant to AS 16.-05.255(a) restricting hunting is justified as a “subsistence use” if the person whose conduct is alleged to have constituted hunting in violation of the regulation believed he or she was taking the game for subsistence uses {see AS 16.05.-940(23)) and was not aware of and did not consciously disregard a substantial and unjustifiable risk that his or her taking was not a subsistence use of the game taken.³

Id. at 180. We reverse.

THE “SUBSISTENCE” DEFENSE CONTRADICTS THE LEGISLATIVE MANDATE OF AS 16.05.920(a)

Since this case involves a question of statutory interpretation, we independently evaluate the lower court’s interpretations of AS 16.05.255(b). State, Commercial Fisheries Entry Commission v. Templeton, 598 P.2d 77, 81 (Alaska 1979) (footnote omitted).

AS 16.05.920(a) states:

Unless permitted by this chapter or by regulation adopted under this chapter, a person may not take, possess, transport, sell, offer to sell, purchase, or offer to purchase fish, game or marine aquatic plants, or any part of fish, game or aquatic plants, or a nest or egg of fish or game.

This section has been part of Alaska’s fish and game code since the early days of statehood. Art. I, ch. 94, § 28, SLA 1959. It is phrased negatively: “unless permitted,” no one has a right to take or possess Alaskan game. No regulation authorized David Eluska to take a deer in Kodiak in May, and his taking of the deer was, therefore, unlawful.

The court of appeals implicitly ruled that section 255(b) authorized Eluska’s taking.⁴ We disagree. Section 255(b)’s history does indicate the legislature’s intent that there be separate regulations governing subsistence hunting. See Eluska, 698 P.2d at 179. We find no evidence, however, of an intent to grant any personal right to take or possess game in the absence of such regulations. Section 255(b) merely established the priority of subsistence uses within the regulatory scheme.⁵ If the regulations adopted by the Board fail to establish the desired priority, it is difficult to believe that the legislature intended unregulated hunting to be the result.⁶

In permitting unregulated subsistence hunting, as a remedy for the board’s failure to adopt subsistence regulations, the court of appeals relied upon United States Smelting, Refining & Mining v. Local Boundary Commission, 489 P.2d 140 (Alaska 1971). In that case we struck down a city boundary change made by the Local Boundary Commission because the Commission had not first complied with a legislative command to develop standards and procedures for changing boundary lines. We did not say that those regulated by the Commission, cities and boroughs, could change their own boundaries because of the Commission’s failure to comply with the statute. United States Smelting stands only for the proposition that agency action taken without first complying with a statutory requirement may be invalid; it does not stand for the proposition that an agency’s failure to act in accordance with a statutory requirement means that those who are regulated by the agency may act as though they were not regulated. United States Smelting, therefore, does not support the result reached by the court of appeals.

Thus, we decline to recognize a subsistence defense in this case. No statute or regulation authorized Eluska’s hunt. His possession of game was therefore illegal under AS 16.05.920(a). The state could properly prosecute Eluska for violation of 5 AAC 81.140(a) (repealed 1985),⁷ since he possessed game in violation of the fish and game code.⁸

We REVERSE and REMAND to the trial court for further proceedings consistent with this opinion.

1 . Eluska was prosecuted pursuant to former 5 AAC 81.320(6) and 5 AAC 81.140(a). 698 P.2d at 176. Former 5 AAC 81.140(a) provided:

No person may possess, transport, or place into the possession of another, any game or parts of game that the person has taken in violation of AS 16 or a regulation promulgated thereunder.

698 P.2d at 175 n. 2. In response to the court of appeals’ decision the Board rescinded these regulations on July 5, 1985, and issued separate subsistence and general hunting regulations. See 5 AAC 83.030 (subsistence limit of five deer between August 1 and January 7); 5 AAC 83.130 (identical restrictions on general deer hunting). The new regulations are not before us in this appeal.

2 . AS 16.05.255(b) states:

The Board of Game shall adopt regulations in accordance with the Administrative Procedure Act (AS 44.62) permitting the taking of game for subsistence uses unless the board determines, in accordance with the Administrative Procedures Act, the adoption of the regulations will jeopardize or interfere with the maintenance of game resources on a sustained-yield basis. Whenever it is necessary to restrict the taking of game to assure the maintenance of game resources on a sustained-yield basis, or to assure the continuation of subsistence uses of such resources, subsistence use shall be the priority use. If further restriction is necessary, the board shall establish restrictions and limitations on and priorities for these consumptive uses on the basis of the following criteria:

(1) customary and direct dependence upon the resource as the mainstay of one’s livelihood;

(2) local residency; and

(3) availability of alternative resources.

3 . AS 16.05.255(a) details the Board of Game’s regulatory powers.

4 . The appellate court remanded to determine whether Eluska met its criteria for assertion of the defense. Eluska, 698 P.2d at 182.

5 . Our dissenting colleagues state that "unregulated subsistence hunting is permissible under section 920(a) by virtue of the provisions in section 255(b).” Opinion at 10. In our view, this conclusion is flawed since 255(b) speaks exclusively of regulated subsistence hunting.

6 . Such a conclusion would contradict the constitutional mandate that state resources be managed on a sustained yield basis. Article VIII, section 4 of the Alaska Constitution states:

Fish, forests, wildlife, grasslands, and all other replenishable resources belonging to the State shall be utilized, developed, and maintained on the sustained yield principle, subject to preferences among beneficial uses.

The court of appeals’ construction of AS 16.05.-255(b) practically removes large portions of state resources from any management plan; it shifts decision-making from the state to individual hunters. We believe that the legislature did not intend such a constitutionally suspect elimination of management. See also Madison v. State, Dep’t of Fish & Game, 696 P.2d 168, 176 (Alaska 1985) (preamble to subsistence law establishes intent that subsistence rights exist within sustained yield management plan). Where possible, we prefer to avoid construing a statute as unconstitutional. Hammond v. Hoffbeck, 627 P.2d 1052, 1059 (Alaska 1981).

7 . See supra note 1.

8 . We note that AS 16.05.930(b) allows the taking of game out of season in case of "dire emergency.” At the time this case arose, 5 AAC 81.900 (repealed 1985) authorized such takings. On remand, the trial court may be asked to determine whether Eluska’s circumstances met the regulatory definition of "dire emergency."