Alaska Fish & Wildlife Conservation Fund v. Alaska Dept. of Fish & Game

In 1999, the Alaska Board of Fisheries (the Board) made a use finding in the Chitina subdistrict for the first time, changing it from a "personal use" to a "subsistence" fishery. The Board reversed this decision in 2003, returning Chitina to a personal use fishery. The Alaska Fish and Wildlife Conservation Fund (AFWCF) and the Chitina Dipnetters Association, Inc., after asking the Board to reconsider its 2003 finding in both 2005 and 2008, brought this suit to challenge the Board's negative customary and traditional use finding for Chitina. They claimed that the regulation used by the Board to make such a finding was unconstitutional on its face and as applied. The superior court held that the regulation was valid and constitutional, but remanded for the Board to fully articulate the standard being used in its application of the regulation. It also instructed the Board not to consider "the per capita consumption of wild food in the home community of various users" upon remand. On remand, the Board codified a definition of "subsistence way of life," allowed the parties to submit evidence, and upheld its previous classification. Because 5 AAC 99.010(b) was consistent with its authorizing statutes, was reasonable and not arbitrary, did not violate the Alaska Constitution's equal access provisions, and was constitutionally applied when the Board made its customary and traditional use finding for the Chitina fishery in 2003, the Supreme Court affirmed that portion of the superior court's rulings. Because there was no indication that the Board actually relied on the per capita consumption of wild foods in the users' home communities when applying 5 AAC 99.010(b) and because that information could have been relevant to the subsistence inquiry, the Supreme Court reversed that portion of the superior court's ruling. View "Alaska Fish & Wildlife Conservation Fund v. Alaska Dept. of Fish & Game" on Justia Law