borgeson & kramer, p.c. in the supreme court for the … · i l i i! i! i i i i i i i i i i i...

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Borgeson & Kramer, P.C.

i00 Cushman Street, Suite 311

Fairbanks, AK 99701

(907) 452-1666

(907) 456-5055 (facsimile)

IN THE SUPREME COURT FOR THE STATE OF ALASKA

ALASKA FISH AND WILDLIFE

CONSERVATION FUND (AFWCF)

vs.

Appellant,

STATE OF ALASKA and

AHTNA TENE NENE

Appellees.

)

))

)

)Supreme Court No.:S-14516

Superior Court No.: 4FA-I!-1474CI

APPEAL FROM THE SUPERIOR COURT FOURTH JUDICIAL DISTRICT AT

FAIRBANKS ORDERS ENTERED AUGUST 5, 2011 THE HONORABLE MICHAEL

McCONAHY, PRESIDING

APPELLANT'S REPLY BRIEF

Filed in the Supreme

Court of the State of

Alaska, this 5_day of

r"rm:_,- , 2o_2.

Marilyn May, Clerk

/ l,

Michael C. Kramer, ABA #9605031

Borgeson & Kramer, PC

100 Cushman Street, Suite 311

Fairbanks, Alaska 99701

(907) 452-!_66

Attorney for Appellant

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TABLE OF CONTENTS

PRINCIPLE AUTHORITIES RELIED UPON ............................ iii

I. ARGUMENT ................................................... 1

II. CONSTITUTIONAL LAW ......................................... 4

III. STATUTORY AND REGULATORY LAW ............................... 9

A. The eight criteria regulation on which the CSH was

based is unconstitutional .................................... 16

B. There is no conceivable basis to support the

constitutional application of A.S. 16.05.330(c) and 5 A.A.C.

92.072 ....................................................... 23

III. CONCLUSION ................................................ 33

TABLE OF AUTHORITIES

CasesAlaska Fish Spotters Ass'n v. State Dept. of Fish and Game, 838

P.2d 798 (Alaska 1992) ................................ 5, i0, 24

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!Gilman v. Martin, 662 P.2d 120, 125 (Alaska 1983) ............. 15

Grunert v. State, 109 P.3d 924 (Alaska 2005) ................... 7

Interior Alaska Airboat Ass'n v. State Dept. of Fish and Game 18 IP.3d 686 (Alaska 2001) ........................................ 4

Kenai Peninsula Fishermen's Cooperative Association v. State 628

P.2d 897, 904 (Alaska 1981) ............................... 9, 24 ILewis v. State, ii0 Ark. 204, 161 S.W. 154, 155-56 (1913) . ii, 12

Madison v. Alaska Dept. of Fish & Game, 696 P.2d 168 (Alaska

_985) ................................................... passim

McDowell v. State, 785 P.2d at i, 8 (Alaska 1989) ......... passim

O'Callaghan v. Rue, 996 P.2d 88 (Alaska 2000) ................ 18

Owsichek v. State, 763 P.2d at 488, 497 (Alaska 1988) ...... 5, 15

Payton v. State, 938 P.2d 1036 (Alaska 1997) .................. 24

State v. Grunert, 139 P.3d 1226 (Alaska 2006) .................. 7

State v. Hebert, 803 P.2d 863 (Alaska 1990) ................... 6

State v. Kenaitze Indian Tribe, 894 P.2d 632(Alaska 1995) . i0, 13

State v. Morry, 636 P.2d 358 (Alaska 1992) ............... passim

Tongass Sport Fishing Ass'n v. State 866 P.2d 1314 (Alaska 1994)

. o o o o 0 . . o 0 o , . . o 0 . . . ° . . o o . ° . ........ o ° . o 0 o ° . ° ° ° 0 ° ° . ° o ......... 25

Statutes

A.S. 16.05.258 ............................................ passim

A.S. 16.05.330 ............................................. 3, 33

A.S. 16.05.940 .................................... 18, 19, 20, 32

Regulations

5 A.A.C. 85.045 ............................................... 30

5 A.A.C. 92.072 ................................................ 6

5 A.A.C. 92.074 ................................................ 3

5 A.A.C. 99.010 ........................................... passim

Constitutional Provisions

Article VIII, Sections 3, 15, & 17 ............... 2, 5, 6, 13, 23

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PRINCIPLE AUTHORITIES RELIED UPON

AS 16.05.258 Subsistence Use and Allocation of Fish & Game

(a) Except in nonsubsistence areas, the Board of Fisheries and

the Board of Game shall identify the fish stocks and game

populations, or portions of stocks or populations, that are

customarily and traditionally taken or used for subsistence. The

commissioner shall provide recommendations to the boards

concerning the stock and population identifications. The boards

shall make identifications required under this subsection after

receipt of the commissioner's recommendations.

(b) The appropriate board shall determine whether a portion of a

fish stock or game population identified under (a) of this

section can be harvested consistent with sustained yield. If a

portion of a stock or population can be harvested consistent

with sustained yield, the board shall determine the amount of

the harvestable portion that is reasonably necessary for

subsistence uses and

(i) if the harvestable portion of the stock or population is

sufficient to provide for all consumptive uses, the appropriate

board

(A) shall adopt regulations that provide a reasonable

opportunity for subsistence uses of those stocks or populations;

(B) shall adopt regulations that provide for other uses of those

stocks or populations, subject to preferences among beneficial

uses; and

(C) may adopt regulations to differentiate among uses;

(2) if the harvestable portion of the stock or population is

sufficient to provide for subsistence uses and some, but not

all, other consumptive uses, the appropriate board

(A) shall adopt regulations that provide a reasonable

opportunity for subsistence uses of those stocks or populations;

(B) may adopt regulations that provide for other consumptive

uses of those stocks or populations; and

(C) shall adopt regulations to differentiate among consumptive

uses that provide for a preference for the subsistence uses, if

regulations are adopted under (B) of this paragraph;

(3) if the harvestable portion of the stock or population is

sufficient to provide for subsistence uses, but no other

consumptive uses, the appropriate board shall

(A) determine the portion of the stocks or populations that can

be harvested consistent with sustained yield; and

(B) adopt regulations that eliminate other consumptive uses in

order to provide a reasonable opportunity for subsistence uses;

and

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(4) if the harvestable portion of the stock or population is not

sufficient to provide a reasonable opportunity for subsistence

uses, the appropriate board shall

(A) adopt regulations eliminating consumptive uses, other than

subsistence uses;

(B) distinguish among subsistence users, through limitations

based on

(i) the customary and direct dependence on the fish stock or

game population by the subsistence user for human consumption as

a mainstay of livelihood;

(ii) the proximity of the domicile of the subsistence user to

the stock or population; and

(iii) the ability of the subsistence user to obtain food if

subsistence use is restricted or eliminated.

(c) The boards may not permit subsistence hunting or fishing in

a nonsubsistence area. The boards, acting jointly, shall

identify by regulation the boundaries of nonsubsistence areas. A

nonsubsistenCe area is an area or community where dependence

upon subsistence is not a principal characteristic of the

economy, culture, and way of life of the area or community. In

determining whether dependence upon subsistence is a principal

characteristic of the economy, culture, and way of life of an

area or community under this subsection, the boards shall

jointly consider the relative importance of subsistence in the

context of the totality of the following socio-economic

characteristics of the area or community:

(i) the social and economic structure;

(2) the stability of the economy;

(3) the extent and the kinds of employment for wages, including

full-time, part-time, temporary, and seasonal employment;

(4) the amount and distribution of cash income among those

domiciled in the area or community;

(5) the cost and availability of goods and services to those

domiciled in the area or community;

(6) the variety of fish and game species used by those domiciled

in the area or community;

(7) the seasonal cycle of economic activity;

(8) the percentage of those domiciled in the area or community

participating in hunting and fishing activities or using wild

fish and game;

(9) the harvest levels of fish and game by those domiciled in

the area or community;

(i0) the cultural, social, and economic values associated with

the taking and use of fish and game;

(ii) the geographic locations where those domiciled in the area

or community hunt and fish;

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(12) the extent of sharing and exchange of fish and game by

those domiciled in the area or community;

(13) additional similar factors the boards establish by

regulation to be relevant to their determinations under this

subsection.

(d) Fish stocks and game populations, or portions of fish stocks

and game populations not identified under (a) of this section

may be taken only under nonsubsistence regulations.

(e) Takings and uses of fish and game authorized under this

section are subject to regulations regarding open and closed

areas, seasons, methods and means, marking and identification

requirements, quotas, bag limits, harvest levels, and sex, age,

and size limitations. Takings and uses of resources authorized

under this section are subject to AS 16.05.831 and AS 16.30.

(f) For purposes of this section, _reasonable opportunity" means

an opportunity, as determined by the appropriate board, that

allows a subsistence user to participate in a subsistence hunt

or fishery that provides a normally diligent participant with a

reasonable expectation of success of taking of fish or game.

AS 16.05.330 Licenses, tags, and subsistence permits

(a) Except as otherwise permitted in this chapter, without

having the appropriate license or tag in actual possession, a

person may not engage in

(I) sport fishing, including the taking of razor clams;

(2) hunting, trapping, or fur dealing;-

(3) the farming of fish, fur, or game;

(4) taxidermy; or

(5) control of nuisance wild birds and nuisance wild small

mammals for compensation.

(b) When obtaining the appropriate license or tag in (a) of this

section, an applicant who asserts residency in the state shall

provide the license vendor with the proof of residence that the

department requires by regulation.

(c) The Board of Fisheries and the Board of Game may adopt

regulations providing for the issuance and expiration of

subsistence permits for areas, villages, communities, groups, or

individuals as needed for authorizing, regulating, and

monitoring the subsistence harvest of fish and game. The boards

shall adopt these regulations when the subsistence preference

requires a reduction in the harvest of a fish stock or game

population by nonsubsistence users.

(d) A person may not receive a sport fishing, hunting, or

trapping license or other permit or tag issued under AS

16.05.330 - 16.05.430, if the person's right to obtain, or

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exercise the privileges granted by, a sport fishing, hunting, or

trapping license is suspended or revoked in another state. A

person who applies for a sport fishing, hunting, or trapping

license or other permit or tag issued under AS 16.05.330 -

16.05.430 shall sign a statement that the person's right to

obtain, or exercise the privileges granted by, a sport fishing,

hunting, or trapping license is not suspended or revoked in

another state.

(e) Repealed by SLA 2001, ch. 39, § 2, eff. June 26, 2001.

AS 16.05.940 Definitions

In AS 16.05 - AS 16.40,

(i) "aquatic plant" means any species of plant, excluding the

rushes, sedges, and true grasses, growing in a marine aquatic or

intertidal habitat;

(2) _barter" means the exchange or trade of fish or game, or

their parts, taken for subsistence uses

(A) for other fish or game or their parts; or

(B) for other food or for nonedible items other than money if

the exchange is of a limited and noncommercial nature;

(3) _a board" means either the Board of Fisheries or the Board

of Game;

(4) _commercial fisherman" means an individual who fishes

commercially for, takes, or attempts to take fish, shellfish, or

other fishery resources of the state by any means, and includes

every individual aboard a boat operated for fishing purposes who

participates directly or indirectly in the taking of these raw

fishery products, whether participation is on shares or as an

employee or otherwise; however, this definition does not apply

to anyone aboard a licensed vessel as a visitor or guest who

does not directly or indirectly participate in the taking;

_commercial fisherman" includes the crews of tenders or other

floating craft used in transporting fish, but does not include

processing workers on floating fish processing vessels who do

not operate fishing gear or engage in activities related to

navigation or operation of the vessel; in this paragraph

_operate fishing gear" means to deploy or remove gear from state

water, remove fish from gear during an open fishing season or

period, or possess a gill net containing fish during an open

fishing period;

(5) "commercial fishing" means the taking, fishing for, or

possession of fish, shellfish, or other fishery resources with

the intent of disposing of them for profit, or by sale, barter,

trade, or in commercial channels; the failure to have a valid

subsistence permit in possession, if required by statute or

regulation, is considered prima facie evidence of commercial

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fishing if commercial fishing gear as specified by regulation is

involved in the taking, fishing for, or possession of fish,

shellfish, or other fish resources;

(6) "commissioner" means the commissioner of fish and game

unless specifically provided otherwise;

(7) "customary and traditional" means the noncommercial, long-

term, and consistent taking of, use of, and reliance upon fish

or game in a specific area and the use patterns of that fish or

game that have been established over a reasonable period of time

taking into consideration the availability of the fish or game;

(8) "customary trade" means the limited noncommercial exchange,

for minimal amounts of cash, as restricted by the appropriate

board, of fish or game resources; the terms of this paragraph do

not restrict money sales of furs and furbearers;

(9) "department" means the Department of Fish and Game unless

specifically provided otherwise;

(i0) _domestic mammals" include musk oxen, bison, and reindeer,

if they are lawfully owned;

(ii) _domicile" means the true and permanent home of a person

from which the person has no present intention of moving and to

which the person intends to return whenever the person is away;

domicile may be proved by presenting evidence acceptable to the

boards of fisheries and game;

(12) _fish" means any species of aquatic finfish, invertebrate,

or amphibian, in any stage of its life cycle, found in or

introduced into the state, and includes any part of such aquatic

finfish, invertebrate, or amphibian;

(13) "fish derby" means a contest in which prizes are awarded

for catching fish;

(14) _fishery" means a specific administrative area in which a

specific fishery resource is taken with a specific type of gear;

however, the Board of Fisheries may designate a fishery to

include more than one specific administrative area, type of

gear, or fishery resource; in this paragraph

(A) _gear" means the specific apparatus used in the harvest of a

fishery resource; and

(B) _type of gear" means an identifiable classification of gear

and may include

(i) classifications for which separate regulations are adopted

by the Board of Fisheries or for which separate gear licenses

were required by former AS 16.05.550 - 16.05.630; and

(ii) distinct sub classifications of gear such as _power" troll

gear and "hand" troll gear or sport gear and guided sport gear;

(15) "fish or game farming" means the business of propagating,

breeding, raising, or producing fish or game in captivity for

the purpose of marketing the fish or game or their products, and

_captivity" means having the fish or game under positive

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control, as in a pen, pond, or an area of land or water that is

completely enclosed by a generally escape-proof barrier; in this

paragraph, "fish" does not include shellfish, as defined in AS

16.40.199;

(16) _fish stock" means a species, subspecies, geographic

grouping, or other category of fish manageable as a unit;

(17) _fish transporter" means a natural person who holds a fish

transporter permit issued under AS 16.05.671;

(18) _fur dealing" means engaging in the business of buying,

selling, or trading in animal skins, but does not include the

sale of animal skins by a trapper or hunter who has legally

taken the animal, or the purchase of animal skins by a person,

other than a fur dealer, for the person's own use;

(19) "game" means any species of bird, reptile, and mammal,

including a feral domestic animal, found or introduced in the

state, except domestic birds and mammals; and game may be

classified by regulation as big game, small game, fur bearers or

other categories considered essential for carrying out the

intention and purposes of AS 16.05 - AS 16.40;

(20) _game population" means a group of game animals of a single

species or subgroup manageable as a unit;

(21) _hunting" means the taking of game under AS 16.05 - AS

16.40 and the regulations adopted under those chapters;

(22) "nonresident" means a person who is not a resident of the

state;

(23) _nonresident alien" means a person who is not a citizen of

the United States and whose permanent place of abode is not in

the United States;

(24) _operator" means the individual by law made responsible for

the operation of the vessel;

(25) "personal use fishing" means the taking, fishing for, or

possession of finfish, shellfish, or other fishery resources, by

Alaska residents for personal use and not for sale or barter,

with gill or dip net, seine, fish wheel, long line, or other

means defined by the Board of Fisheries;

(26) "person with physical disabilities" means a person who

presents to the department either written proof that the person

receives at least 70 percent disability compensation from a

government agency for a physical disability or an affidavit

signed by a physician licensed to practice medicine in the state

stating that the person is at least 70 percent physically

disabled;

(27) _resident" means

(A) a person who for the 12 consecutive months immediately

preceding the time when the assertion of residence is made has

maintained the person's domicile in the state and who is neither

claiming residency in another state, territory, or country nor

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obtaining benefits under a claim of residency in another state,

territory, or country;

{B) a partnership, association, joint stock company, trust, or

corporation that has its main office or headquarters in the

state; a natural person who does not otherwise qualify as a

resident under this paragraph may not qualify as a resident by

virtue of an interest in a partnership, association, joint stock

company, trust, or corporation;

(C) a member of the military service, or United States Coast

Guard, who has been stationed in the state for the 12

consecutive months immediately preceding the time when the

assertion of residence is made;

(D) a person who is the dependent of a resident member of the

military service, or the United States Coast Guard, and who has

lived in the state for the 12 consecutive months immediately

preceding the time when the assertion of residence is made; or

(E) an alien who for the 12 consecutive months immediately

preceding the time when the assertion of residence is made has

maintained the person's domicile in the state and who is neither

claiming residency in another state, territory, or country nor

obtaining benefits under a claim of residency in another state,

territory, or country;

(28) _rural area" means a community or area of the state in

which the noncommercial, customary, and traditional use of fish

or game for personal or family consumption is a principal

characteristic of the economy of the community or area;

(29) "seizure" means the actual or constructive taking or

possession of real or personal property subject to seizure under

AS 16.05 - AS 16.40 by an enforcement or investigative officer

charged with enforcement of the fish and game laws of the state;

(30) "sport fishing" means the taking of or attempting to take

for personal use, and not for sale or barter, any fresh water,

marine, or anadromous fish by hook and line held in the hand, or

by hook and line with the line attached to a pole or rod which

is held in the hand or closely attended, or by other means

defined by the Board of Fisheries;

(31) _subsistence fishing" means the taking of, fishing for, or

possession of fish, shellfish, or other fisheries resources by a

resident domiciled in a rural area of the state for subsistence

uses with gill net, seine, fish wheel, long line, or other means

defined by the Board of Fisheries;

(32) "subsistence hunting" means the taking of, hunting for, or

possession of game by a resident domiciled in a rural area of

the state for subsistence uses by means defined by the Board of

Game;

(33) _subsistence uses" means the noncommercial, customary and

traditional uses of wild, renewable resources by a resident

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domiciled in a rural area of the state for direct personal orfamily consumption as food, shelter, fuel, clothing, tools, or

transportation, for the making and selling of handicraft

articles out of nonedible by-products of fish and wildlife

resources taken for personal or family consumption, and for the

customary trade, barter, or sharing for personal or family

consumption; in this paragraph, "family" means persons related

by blood, marriage, or adoption, and a person living in the

household on a permanent basis;

(34) "take" means taking, pursuing, hunting, fishing, trapping,

or in any manner disturbing, capturing, or killing or attempting

to take, pursue, hunt, fish, trap, or in any manner capture or

.kill fish or game;

(35) _taxidermy" means tanning, mounting, processing, or other

treatment or preparation of fish or game, or any part of fish or

game, as a trophy, for monetary gain, including the receiving of

the fish or game or parts of fish or game for such purposes;

(36) "trapping" means the taking of mammals declared by

regulation to be fur bearers;

(37) "vessel" means a floating craft powered, towed, rowed, or

otherwise propelled, which is used for delivering, landing, or

taking fish within the jurisdiction of the state, but does not

include aircraft.

5 AAC 85.045 Hunting seasons and bag limits for moose

(a) In this section, the phrase "General hunt only" means that

there is a general hunt for residents, but no subsistence hunt,

during the relevant open season. For those units or portions of

units within non-subsistence areas established by the Joint

Boards of Fisheries and Game (5 AAC 99.015), there is a general

hunt only. Hunting seasons and bag limits for moose are as

follows:

Units and Bag Limits

(1)

Unit I(A)

1 bull by registration permit

only Units I(B) and 3

1 bull with spike-fork

Resident

Open Season

(Subsistence and

General Hunts)

Sept. 15 - Oct.

15 (General hunt

only)

Sept. 15 - Oct.

15

Nonresident

Open Season

Sept. 15 -

Oct. 15

Sept. 15 -

Oct. 15

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antlers or 50-inch antlers or

antlers with 3 or more brow

tines on one side or antlers

with 2 or more brow tines on

each side, by registration

permit only

Unit I(C) Berners Bay

drainages

1 moose by drawing permit

only; up to 30 permits may be

issued

Unit I(C), that portion south

of Point Hobart, including

all Port Houghton drainages


antlers Or 50-inch antlers or


tines on one side or antlers


each side, by registration

permit only Unit I(C), that

portion west of Excursion

Inlet and north of Icy

Passage

1 moose per regulatory year,

only as follows:




tines on one side by

registration permit only; or

1 antlerless moose by drawing

permit only; up to i00

permits may be issued

Remainder of Unit I(C)


only Unit I(D)

1 bull with spike-fork or 50-

inch antlers or antlers with

3 or more brow tines on one

side by Tier II subsistence

hunting permit only; up to

Sept. 15 - Oct.

15 (General hunt

only)

Sept. 15 - Oct.

15 (General hunt

only)

Sept. 15 - Oct.

15 (General hunt

only)

Nov. I0 - Dec. i0

(General hunt

only)

Sept. 15 - Oct.

15 (General hunt

only)

Sept. 15 - Oct. 7

(Subsistence hunt

only)

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Sept. 15 -

Oct. 15,

Sept. 15 -

Oct. 15

Sept. 15 -

Oct. 15

Nov. i0 - Dec.

i0

Sept. 15 -

Oct. 15

No open

season.

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250 permits may be issued

(2)

Units 2 and 4

(3)

Unit 5(A), that portion south

of Wrangell-Saint Elias

National Park, north and east

of Russell and Nunatak

Fiords, and east of the east

side of East Nunatak Glacier

to the Canadian Border

(Nunatak Bench)

1 moose by registration

permit only; up to 5 moose

may be taken

Remainder of Unit 5(A)


only; up to 60 bulls may be

taken; the commissioner may,

by emergency order, close the

season in that portion west

of the Dangerous River when

30 bulls have been taken from

that area Unit 5(B)



taken

(4)

unit 6(A), all drainages into

the Gulf of Alaska from Cape

Suckling to Palm Point


only as follows:

RESIDENT HUNTERS:



taken; or


permit only; up to 30 drawing


NONRESIDENT HUNTERS:

1 bull by drawing permit

only; up to 5 drawing permits

No open season. No open

season.

Nov. 15 - Feb. 15 Nov. 15 - Feb.

15

Oct. 15 - Nov. 15

Sept. 1 - Dec. 15

Oct. 15 - Nov.

15

Sept. 1 - Dec.

15

Sept_ 1 - Nov. 30

(General hunt

only)

Sept. 1 - Nov. 30

(General hunt

only)

Sept. 1 - Nov.

30

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may be issued



only as follows:

RESIDENT HUNTERS:




tines on one side; or

1 antlerless moose by

registration permit only; up

to 20 antlerless moose may be

taken


1 bull with 50-inch antlers

or antlers with 3or more brow




to 20 antlerless moose may be

taken

Unit 6 (B)


only as follows:

1 antlered moose by


to 30 antlered moose may be

taken; or


permit only; up to 30 drawing

permits may be issued for

antlerless moose;

Unit 6(C)


only; up to 40 permits for

bulls and up to 20 permits

for antlerless moose may be

issued

Unit 6(D)

1 bull

(5)

Sept. 1 - Nov. 30

(General hunt

only)

Nov. 15 - Dec. 31

(General hunt

only)

Sept. 1 - Nov. 30

Nov. 15 - Dec. 31

Aug. 27 - Oct. 31

(General hunt

only)

Aug. 27 - Oct. 31

(General hunt

only)

Sept. 1 - Oct. 31

(General hunt

only)

Sept. 1 - Sept.

30 (General hunt

only)

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No open

season.

No open

season.

No open

season.

Sept. 1

Sept. 30

Unit 7, the Placer Riverdrainages, and that portionof the Placer Creek (BearValley) drainage outside thePortage Glacier Closed Area,and that portion of Unit14(C) within the TwentymileRiver drainageRESIDENT HUNTER:1 moose by drawing permitonly; up to 60 permits forbulls will be issued incombination with non-residenthunts, and up to 70 permitsfor antlerless moose will beissuedNONRESIDENT HUNTERS:lbull by drawing permitonly; up to 60 permits forbulls will be issued incombination with residenthuntsUnit 7, that portion west ofthe Resurrection Creek Trailand north of the SterlingHighway1 bull per regulatory year,only as follows:1 bull with 50-inch antlersor antlers with 4 or morebrow tines on one side; or1 bull with spike-forkantlers or 50-inch antlers orantlers with 3 or more browtines on one side by drawingpermit only; up to 25 permitsmay be issued in combinationwith Unit 15(A), that portioneast of the Mystery CreekRoad and the Pipeline Road,and north of the SterlingHighway(6)

Remainder of Unit

7

Aug. 20 - Oct. i0

(General hunt

only)

Aug. 20 Oct. i0

Aug. 20 - Sept.

20 (General hunt

only)

Oct. i0 - Nov. I0

(General hunt

only)

Aug. 20 - Sept.

20 (General hunt

xiv

Aug. 20 -

Sept. 20

Oct. i0 - Nov.

i0

Aug. 20 -

Sept. 20

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or antlers with 4 or more

brow tines on one side

(7)unit 8

(8)

Unit 9 (A)


only

Unit 9(B)

RESIDENT HUNTERS:


only; or

1 antlered bull by

registration permit only




brow tines on one side, by

registration permit only Unit

9(C), that portion draining

into the Naknek River

RESIDENT HUNTERS:


only; or

1 antlered bull by







Remainder of Unit 9(C)

RESIDENT HUNTERS:


only; or

1 antlered bull by






only)

No open season.

Sept. 1 - Sept.

15

Sept. 1 - Sept.

15

Dec. 15 - Jan. 15

Sept. 1 - Sept.

20

Dec. 1 - Dec. 31

Sept. 1 - Sept.

20

Dec. 15 - Jan. 15

My

No open

season.

Sept. 5 -

Sept. 15

Sept. 5 -

Sept. 15

Sept. 5 -

Sept. 20

Sept. 5 -

Sept. 20

I


Unit 9 (D)

1 antlered bull by


Unit 9(E)

RESIDENT HUNTERS:






1 antlered bull by







(9)

Unit ii, that portion east of

the east bank of the Copper

River upstream from and

including the Slana River

drainage

RESIDENT HUNTERS:

1 bull per harvest report by

community harvest permit

only; however, no more than

70 bulls that do not meet

antler restrictions for other

resident hunts in the same

area may be taken in the

entire community harvest

area; or




tines on one side, by







Remainder of Unit ii


Dec. 15 - Jan. 20 No open

season.

Sept. i0 - Sept.

25

Sept. 1 - Sept.

20

Sept. i0 -

Sept. 25

Aug. i0 - Sept. No open

20 - season.

(Subsistence

hunt only)

Aug. 20 - Sept 17

Aug. 20 -

Sept. 17

Aug. i0 - Sept. No open

xvi

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area ; or




tines on one side

(i0)

Unit 12, that portion

including all drainages into

the west bank of the Little

Tok River, from its

headwaters in Bear Valley at

the intersection of the unit

boundaries of Units 12 and 13

to its junction with the Tok

River, and all drainages into

the south bank of the Tok

River from its junction with

the Tok river to the Tok

Glacier

RESIDENT HUNTERS:









area; or




tines on one side





Unit 12, remainder of that

portion in the Tok River

drainage upstream from the

20 (Subsistence

hunt only)

Aug. 20 - Sept.

2O

Aug. 24 - Aug. 28

Aug. 24 - Aug. 28

Aug. 24 - Aug. 28

xvii

season.

Aug. 20 -

Sept. 20

Sept. 8 -

Sept. 17

(Subsistence

hunt only)

Sept. 8 -

Sept. 17

Sept. 8 -

Sept. 17

Tok Cutoff BridgeRESIDENT HUNTERS:1 bull with spike-forkantlers or 50-inch antlers orantlers with 4 or more browtines on one sideNONRESIDENT HUNTERS:1 bull with 50-inch antlersor antlers with 4 or morebrow tines on one sideUnit 12, that portion lyingeast of the Nabesna River andsouth of the winter trailrunning southeast fromPickerel Lake to the Canadianborder 1 bull with 50-inchantlers or antlers with 4 ormore brow tines on one sideunit 12, that portion withinthe Nabesna River drainagewest of the east bank of theNabesna River upstream fromthe southern boundary of theTetlin National WildlifeRefugeRESIDENT HUNTERS:1 bull with spike-forkantlers or 50-inch antlers orantlers with 3 or more browtines on one side, byregistration permit onlyNONRESIDENT HUNTERS:1 bull with 50-inch antlersor antlers with 3 or morebrow tines on one side, byregistration permit onlyRemainder of Unit 12RESIDENT HUNTERS:1 bull

NONRESIDENT HUNTERS:1 bull with 50-inch antlersor antlers with 4 or morebrow tines on one side(ii)Unit 13

Sept. 8 - Sept.17

Sept. 8 -Sept. 17

Sept. 1 - Sept. Sept. 1 -30 Sept. 30

Aug. 20 Sept.17

Aug. 20 -Sept. 17

Aug. 24 - Aug. 28 Sept. 8 -Sept. 17

Sept. 8 - Sept.17

xviii

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only as follows:

RESIDENT HUNTERS:









area; or





1 bull, by drawing permit

only; up to 1,000 permits may

be issued; or


permit only; up to 200

permits may be issued; a

person may not take a calf or

a cow accompanied by a calf




brow tines on one side by

drawing permit only; up to


(12)

Unit 14(A)


only as follows:




tines on one side, by bow and

arrow only; or






permit only; up to 1,000

antlerless moose permits may

Aug. i0 - Sept.

20 (Subsistence

hunt only)

Sept. 1 - Sept.

20 (Subsistence

hunt only)

Sept. 1 - Sept.

20 (General hunt

only)

Sept. 1 - Sept.

20 (General hunt

only)

Aug. i0 Aug. 17

(General hunt

only)

Aug. 25 Sept.

25 (General hunt

only)

Aug. 20 Sept.

25 (General hunt

only) Nov. 1 -

xix

Sept. 1 -

Sept. 20

Aug. i0 - Aug.

17

Aug. 25 -

Sept. 25

No open

season.

be issued; or

1 moose by hot-spot permitonly; by shotgun only; up to200 permits may be issued

Unit 14(B)1 bull per regulatory year,only as follows:1 bull with spike-forkantlers or 50-inch antlers orantlers with 3 or more browtines on one side, by bow andarrow only; or1 bull with spike-forkantlers or 50-inch antlers orantlers with 3 or more browtines on one sideUnit 14(C), Joint BaseElmendorf-Richardson (JBFR)Management Area

1 moose per regulatory yearby drawing permit, and bymuzzleloading blackpowderrifle or bow and arrow only;up to 185 permits may beissuedUnit 14(C), that portionknown as the BirchwoodManagement Area

1 moose by drawing permit, bybow and arrow only; up to 25permits may be issuedUnit 14(C), that portionknown as the AnchorageManagement Area

1 antlerless moose by drawingpermit only, and by bow andarrow, shotgun, ormuzzleloader only; up to 50permits may be issuedUnit 14(C), that portion ofthe Ship Creek drainage

Dec. 25 (Generalhunt only)Winter season tobe announced byemergency order(General huntonly)

Aug. i0 - Aug. 17(General huntonly)

Aug. 25 - Sept.25 (General huntonly)

Day after LaborDay - Mar. 31(General huntonly)

Day after LaborDay - Sept. 30(General huntonly)

Day after LaborDay - Nov. 30(General huntonly)

XX

No open

season.

Aug. i0 - Aug.

17

Aug. 25 -

Sept. 25

Day after

Labor Day -

Mar. 31

Day after

Labor Day -

Sept. 30

No open

season.

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upstream of the Joint Base

Elmendorf-Richardson (JBER)

Management Area



issued; or


only

Unit 14(C), the Eklutna Lake

Management Area

1 bull by registration

permit, by bow and arrow


taken



only as follows:






permit only; up to 60 permits

may be issued; or

1 bull by drawing permit

only, by bow and arrow only;

up to i0 permits may be

issued

(13)

Unit 15(A), the Skilak Loop

Wildlife Management Area


antlers by drawing permit


issued

Unit 15(A), that portion east

of the Mystery Creek Road and

the Pipeline Road, and north

of the Sterling Highway

1 bull per regulatory year,

only as follows:

Day after Labor

Day - Sept. 30

(General hunt

only)

Oct. 1 - Nov. 30

(General hunt

only)

Day after Labor

Day - Oct. 20

(General hunt

only)

Day after Labor

Day - Sept. 30

(General hunt

only)

Day after Labor

Day - Sept. 30

(General hunt

only)

Oct. 20 - Nov. 15

Sept. 15 - Sept.

30 (General hunt

only)

xxi

Day after

Labor Day -

Sept. 30

Oct. 1 - Nov.

3O

Day after

Labor Day -

Oct. 20

Day after

Labor Day -

Sept. 30

No open

season.

No open

season.

Sept. 15 -

Sept. 30

i




bow and arrow only; or



brow tines on one side; or




tines on one side by drawing


may be issued in combination

with Unit 7, that portion

west of the Resurrection

Creek Trail and north of the

Sterling Highway



only as follows:








Unit 15(B), that portion

bounded by line running from

the mouth of Shanta-talik

Creek, Tustumena Lake,

northeastward to the head of

the westernmost fork of Funny

River; then downstream along

the westernmost fork of Funny

River to the Kenai National

Wildlife Refuge boundary;

then east along the refuge

boundary to its junction with

the Kenai River; then

eastward along the south side

of the Kenai River and Skilak

Lake; then south along the

western side of Skilak River,

Skilak Glacier, and Harding

Icefield; then west along the

unit 15(B) boundary to the

Aug. i0 - Aug. 17

(General hunt

only)

Aug. 20 - Sept.

20 (General hunt

only)

Oct. i0 - Nov. i0

(General hunt

only)

Aug. i0 - Aug. 17

(General hunt

only)

Aug. 20 - Sept.

20 (General hunt

only)

Sept. 1 Sept.

20 (General hunt

only) Sept. 26 -

Oct. 15 (General

hunt only)

xxii

No open

season.

No open

season.

Oct. i0 - Nov.

i0

No open

season.

No open

season.

Sept. 1 -

Sept. 20 Sept.

26 - Oct. 15

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mouth of Shantatalik Creek



brow tines on one side by

drawing permit only; up to

i00 permits may be issued

Remainder of Unit 15(B)


only as follows:








Unit 15(C), that portion

southwest of a line from

Point Pogibshi to the point

of land between Rocky Bay and

Windy Bay 1 bull by Tier II

subsistence hunting permit

Unit 15(C), that portion

south of the south fork of

the Anchor River and

northwest of Kachemak Bay



brow tines on one side; or


permit only; the taking of

calves, and females

accompanied by calves, is

prohibited; up to i00 permits

may be issued

Remainder of Unit" 15(C)




Aug. i0 - Aug. 17

(General hunt

only)

Aug. 20 - Sept.

20 (General hunt

only)

Aug. 25 - Sept.

30 (Subsistence

hunt only)

Aug. 20 - Sept.

20 (General hunt

only)

Aug. 20 - Sept.

20

Aug. 20 - Sept.

20 (General hunt

only)

Aug. I0 - Aug.

17

Aug. 20 -

Sept. 20

No open

season.

No open season

Aug. 20 -

Sept. 20

No open

season.

(14) the hunting seasons and bag limits for moose in Unit 16 are

as follows:

(A) before July i, 2012, the hunting seasons and bag limits for

moose in Unit 16 are as follows:

xxiii

Unit 16(A)1 bull per regulatory year, only asfollows:1 bull with spike-fork antlers or 50-inch antlers or antlers with 3 or morebrow tines on one side, by bow andarrow only; or

1 bull with spike-fork antlers or 50-

inch antlers or antlers with 3 or more

brow tines on one side Unit 16(B),

Kalgin Island

1 moose per regulatory year,by



1 bull per regulatory year, only as

follows:

RESIDENT HUNTERS:



brow tines on one side by Tier II

subsistence hunting permit only; if the

harvestable portion is 199 moose or

less; up to 400 permits may be issued;

or-

1 bull by Tier II subsistence hunting

permit only; or



brow tines on one side; if the

harvestable portion is greater than 199

moose, but less than 241 moose; or


permit only; up to 260 permits may be

issued; or




harvestable portion is greater than 240

moose; or


permit only; up to 260 permits may be

issued

xxiv

Aug. i0 - Aug.

17 (General

hunt only)

Aug. 20 - Sept.

25 (General

hunt only)

Aug. 20 - Sept.

20

Aug.

i0 -

Aug.

17

Aug.

20 -

Sept.

25

Aug.

20 -

Sept.

2O

Aug. 20 - Sept.

30 (Subsistence

hunt only)

Nov. 15 - Feb.

28 (Subsistence

hunt only)

Sept. 1 - Sept.

20 (Subsistence

hunt only)

Nov. 15 - Feb.

28 (Subsistence

hunt only)

Aug. 20 - Sept.

25 (Subsistence

hunt only)

Nov. 15 - Feb.

28 (Subsistence

hunt only)

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harvestableportion is greater than 240

moose

Aug.

25 -

Sept.

15

(B) on or after July I, 2012, the hunting seasons and bag limits

for moose in Unit 16 are as follows:

Unit 16(A)


only as follows:

1 bull with spike-fork antlers

or 50-inch antlers or antlers


one side, by bow and arrow

only; or




one side

unit 16(B), Kalgin Island

1 moose per regulatory year, by




only as follows:

RESIDENT HUNTERS:

If the harvestable portion 30

is 199 moose or less; up to 400

total Tier II permits may be

issued;




one side by Tier II subsistence

hunting permit only; or

1 bull by Tier II subsistence

hunting permit only; or if the

harvestable portion is greater

than 199 moose, but less than

241 moose;




Aug. i0 - Aug.

17 (General

hunt only)

Aug. 20 - Sept.

25 (General

hunt only)

Aug. i0 - Aug.

17

Aug. 20 -

Sept. 25

Aug. 20 Sept. Aug. 20 -

20 Sept. 20

Aug. 20 - Sept.

(Subsistence

hunt only)

Dec. 15 - Mar.

31

Sept. 1 - Sept.

20 (Subsistence

hunt only)

xxv

one side; or1 bull by Tier II subsistencehunting permit only; up to 260permits may be issued; orIf the harvestable portion isgreater than 240 moose

1 bull with spike-fork antlersor 50-inch antlers with 3 ormore brow tines on one side; or1 bull by Tier II subsistencehunting permit only; up to 260permits may be issuedNONRESIDENT HUNTERS:1 bull with spike-fork antlersor 50-inch antlers or antlerswith 3 or more brow tines onone side; if the harvestableportion is greater than 240moose(15)

Unit 17(A)


only as follows:

RESIDENT HUNTERS:


only; or

1 antlered bull by registration

permit; during the period Dec.

1 - Jan. 31, a season of up to

14 days may be announced by

emergency order


Unit 17(B), that portion in the

Unit 17(B) nonresident closed

area

RESIDENT HUNTERS:


only; however, during the

period Sept. 1 - Sept. 15,

spike-fork bulls and bulls with

50-inch antlers or antlers with


side may be taken with a

harvest ticket; or

Dec. 15 - Mar.

31 (Subsistence

hunt only)

Aug. 20 - Sept.

25 (Subsistence

hunt only)

Dec. 15 - Mar.

31 (Subsistence

hunt only)

Aug. 25 - Sept.

20 (Subsistence

hunt only)

Dec. 1 - Jan.

31 (Subsistence

hunt only)

Aug. 20 - Sept.

15

Aug. 25 -

Sept. 15

No open

season. (To be

announced)

Dec. 1 - Dec.

31

xxvi

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permit only


1 bull with 50-inch antlers or



registration permit only; up to



RESIDENT HUNTERS:








harvest ticket; or


permit only




tines on one side

Unit 17(C)

RESIDENT HUNTERS:








harvest ticket; or


permit only


(16)

Unit 18 Kuskokwim Area, that

portion easterly of a line from

the mouth of the Ishkowik River

to the closest point of Dall

Lake then to the east bank of

the Johnson River at its

xxvii

Dec. 1 - Dec.

31

Aug. 20 - Sept.

15

Dec. 1 - Dec.

31

Aug. 20 - Sept.

15

Dec. 1 - Dec.

31

Sept. 1 - Sept.

i0

Sept. 5 -

Sept. 15

Dec. 1 - Dec.

31

Sept. 5 -

Sept. 15

No open

season.

No open

season.

entrance into NunavakanukakslakLake (608 59.41' N. latitude,1628 22.14' W. longitude),continuing upriver along a line

one-half mile south and east

of, and paralleling a line

along the southerly bank of the

Johnson River _o the confluence

of the east bank of Crooked

Creek, then continuing upriver

along the east bank of Crooked

Creek to the outlet at Arhymot

Lake, then following the south

bank of Arhymot Lake easterly

to the Unit 18 border and north

of and including the Eek River

drainage


permit only Unit 18, that

portion south of and including

the Goodnews River drainage


permit only Unit 18, that

portion south of the Eek River

drainage and north of the

Goodnews River drainage

1 antlered bull per regulatory

year Unit 18, Lower Yukon Area,

that portion north and west of

the Kashunuk River including

the north bank from the mouth

of the river upstream to the

old village of Chakaktolik,

west of a line from Chakaktolik

to Mountain Village, and

excluding all Yukon River

drainages upriver from Mountain

Village

RESIDENT HUNTERS:

2 moose of which only 1 may be

an antlered bull; a person may

not take a calf or a cow

accompanied by a calf; or

2 antlerless moose


1 antlered bull;

xxviii

Sept. 1 - Sept.

30

Sept. 1- Sept.

30

Aug. 1 - Sept.

30

No open

season.

No open

season.

Oct. 1 - Last

Day of Feb.

Sept. 1 -

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Remainder of Unit 18

1 antlered bull; or

1 moose

(17)

Unit 19(A), that portion within

the Lime Village Management

Area

2 bulls per regulatory year; up

to 28 bulls may be taken by

Tier II subsistence hunting


may be issued

Unit 19(A), that portion

downstream from and including

the George River drainage, and

downstream from and excluding

the Downey River drainage

RESIDENT HUNTERS:

1 antlered bull by Tier II


may be issued



Unit 19(B) within the

Nonresident Closed Area

RESIDENT HUNTERS:


inch antlers or antlers with 4

or more brow tines on one side



RESIDENT HUNTERS:







tines on one side

Unit 19(C)

RESIDENT HUNTERS:


Aug. i0 - Sept.

30

Dec. 20 - Last

Day of Feb.

Aug. i0 - Sept.

25 (Subsistence

hunt only)

Sept. 1 - Sept.

20

No open season.

Sept. 1 - Sept.

2O

Sept. 1 - Sept.

2O

Sept. 1 - Sept.

xxix

Sept. 30

Sept. 1 -

Sept. 30

No open

season.

Nov. 20 - Mar.

31 Subsistence

hunt only)

No open

season.

No open

season.

No open

season.

Sept. 5 -

Sept. 20

i


or more brow tines on one side;

or


only




one side

Unit 19(D), that portion in the

Upper Kuskokwim Controlled Use

Area


permit; or

1 moose by registration permit;

during the period Feb. 1 - Feb.

28, a season may be announced

by emergency order Unit 19(D),

that portion between and

including the Cheeneetnuk and

Gagaryah River drainages,

excluding that portion within 2

miles of the Swift River

RESIDENT HUNTERS:

1 antlered bull; or


permit; or


during the period Feb. 1 Feb.


by emergency order




tines on one side

Remainder of Unit 19(D)

1 antlered bull; or


permit; or


during the period Feb. 1 - Feb.


by emergency order

(18)

20

Feb. 1 Feb.

28

Sept. 1 - Sept.

25

(To be

announced)

Sept. 1 - Sept.

2O

Sept. 1 - Sept.

25

(To be

announced)

Sept. 1 - Sept.

20

Sept. 1 - Sept.

25

(To be

announced)

XXX

Sept. 1 -

Sept. 20

No open

season.

No open

season.

No open

season.

No open

season.

Sept. 1 -

Sept. 20

No open

season.

No open

season.

No open

season.

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Unit 20(A), the Ferry Trail

Management Area, Wood River

Controlled Use Area, and the

¥anert Controlled Use Area

RESIDENT HUNTERS:




one side; or



permits may be issued in

combination with the Remainder

of Unit 20(A); a person may not

take a cow accompanied by a

calf; or


registration permit only; a

person may not take a cow


1 bull by drawing permit only;

up to 1,000 permits may be

issued in combination with the

Remainder of unit 20(A); or


by muzzleloader only; up to 75


combination with nonresidents

in Unit 20(A)







tines on one side, by drawing

permit only; by muzzleloader


issued in combination with

residents in unit 20(A)


RESIDENT HUNTERS:




one side; or

Sept. 1 - Sept.

25 (General

hunt only)

Aug. 15 - Nov.

15 (General

hunt only)

Oct. 1 - Feb.

28 (General

hunt only)

Sept. 1 - Sept.

25 (General

hunt only)

Nov. 1 - Nov.

30 (General

hunt only)

Sept. 1 - Sept.

25

xxxi

Sept. 1 -

Sept. 25

Nov. 1 - Nov.

3O

I




combination with Unit 20(A),

the Ferry Trail Management

Area, Wood River Controlled Use

Area, and the Yanert Controlled

Use Area; a person may not take

a cow accompanied by a calf; or






up to 1,000 permits may be

issued in combination with Unit

20(A), the Ferry Trail

Management Area, Wood River

Controlled Use Area, and the

Yanert Controlled Use Area;




tines on one side;

Unit 20(B), that portion within

Creamer's Refuge

1 bull with spike-fork or

greater antlers, by bow and

arrow only; or

1 antlerless moose by bow and

arrow only, by drawing permit

only; up to 150 bow and arrow

permits may be issued in the

Fairbanks Management Area; a

recipient of a drawing permit

is prohibited from taking an

antlered bull moose in the

Fairbanks Management Area; or

1 antlerless moose by muzzle-

loader by drawing permit only;

up to i0 permits may be

issued;a recipient of a drawing

permit is prohibited from

taking an antlered bull moose

Aug. 15 - Nov.

15 (General

hunt only)

Aug. 25 - Feb.

28

Sept. 1 - Sept.

25

Sept. 1 - Sept.

25

Sept. 1 - Sept.

30 (General

hunt only)

Nov. 21 - Nov.

27 (General

hunt only)

Sept. 1 - Nov.

27 (General

hunt only)

Dec. 1 - Jan.

31 (General

hunt only)

xxxii

Sept. 1

Sept. 30

Nov. 21 - Nov.

27

Sept. 1 - Nov.

27

Dec. 1 - Jan.

31

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in the Fairbanks Management

Area

unit 20(B), remainder of the

Fairbanks Management Area

1 bull with spike-fork or

greater antlers, by bow and

arrow only; or

1 antlerless moose by bow and

arrow only, by drawing permit

only; up to 150 bow and arrow


Fairbanks Management Area; a

recipient of a drawing permit

is prohibited from taking an

antlered bull moose in the

Fairbanks Management Area

Unit 20(B), that portion within

the Minto Flats Management Area

1 bull; or




one side; or


registration permit only Unit

20(B), the drainage of the

Middle Fork of the Chena River



may be issued; a person may not

take a cow accompanied by a

calf; or





1 bull; or

1 bull, by bow and arrow only;

or


by muzzleloader only; up to 60

Sept. 1 Sept.

30 (General

hunt only)

Nov. 21 Nov.

27 (General

hunt only)

Sept. 1 - Nov.

27 (General

hunt only)

Aug. 21 - Aug.

27 (Subsistence

hunt only)

Sept. 8 - Sept.

25

Oct. 15 - Feb.

28 (Subsistence

hunt only)

Aug. 15 - Nov.

15 (General

hunt only)

Oct. 1 - Feb.

28 (General

hunt only)

Sept. 1 - Sept.

2O

Sept. 21 -

Sept. 30

Nov. 1 - Nov.

30 (General

xxxiii

Sept. 1 -

Sept. 30

Nov. 21 - Nov.

27

Sept. i - Nov.

27

No open

season.

No open

season.

No open season

No open

season.

No open

season.

Sept. 1 -

Sept. 20

Sept. 21 -

Sept. 30

No open

season.

I


combination with the hunt in

the Salcha River drainage

upstream from and including

Goose Creek

Unit 20(B), that portion of the

Salcha River drainage upstream

from and including Goose Creek

1 bull; or

1 bull, by bow and arrow only;

or


by muzzleloader only: up to 60


combination with the hunt in

the Middle Fork of the Chena

River

Unit 20(B), that portion

southeast of the Moose Creek

dike within one-half mile of

each side of the Richardson

Highway

i bull; or

1 moose by drawing permit only;

by bow and arrow or

muzzleloader only; up to i00



1 bull; or




Remainder of Unit 20(B); a






accompanied by a calf

Unit 20(C)

RESIDENT HUNTERS:

1 bull


hunt only)

Sept. 1 - Sept.

2O

Sept. 21 -

Sept. 30

Nov. 1 - Nov.

30

Sept. 1 - Sept.

20

Sept. 16 - Feb.

28 (General

hunt only)

Sept. 1 - Sept.

20

Aug. 15 - Nov.

15 (General

hunt only)

Oct. 1 - Feb.

28 (General

hunt only)

Sept. 1 - Sept.

25

xxxiv

Sept. 1 -

Sept. 20

Sept. 21 -

Sept. 30

No open

season.

Sept. 5 -

Sept. 20

No open

season.

Sept. 5 -

Sept. 20

No open

season.

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tines on one side

Unit 20(D), that portion lying

south of the north bank of the

Tanana River and east of the

west bank of the Johnson River,

except that portion within the

Robertson River drainage south

of the confluence of the east

and west forks, and within one

mile west of the west fork

1 bull

Unit 20(D), that portion within

the Robertson River drainage

south of the confluence of the

east and west forks, and within

one mile west of the west fork

RESIDENT HUNTERS:

1 bull




tines on one side Unit 20(D),

that portion lying west of the

west bank of the Johnson River

and south of the north bank of

the Tanana River, except the

Delta Junction Management Area

and the Bison Range Youth Hunt

Management Area

RESIDENT HUNTERS:




or

1 bull by drawing permit; or




combination with that portion

in the Delta Junction

Sept. 1 - Sept.

15

Sept. 1 - Sept.

15

Sept. 1 - Sept.

15 (General

hunt only)

Sept. 1 - Sept

15 (General

hunt only)

Oct. I0 - Nov.

25 (General

hunt only)

X.X_XV

Sept. 5 -

Sept. 20

No open

season.

Sept. 5 -

Sept. 15

i

Management Area; a person may





person may not take a calf or a

cow accompanied by a calf




tines on one side


the Bison Range Youth Hunt

Management Area




or 1 antlerless moose, per

lifetime of a hunter, by

drawing permit only; up to I0

permits may be issued; a person

may not take a calf or a cow

accompanied by a calf;


the Delta Junction Management

Area

RESIDENT HUNTERS:




by drawing permit only; up to

30 permits may be issued; or




combination with that portion

lying west of the west bank of

the Johnson River and south of

the north bank of the Tanana

River; a person may not take a

calf or a cow accompanied by a

calf; or



person may not take a calf or a

cow accompanied by a calf

Oct. i0 - Nov.

25 (General

hunt only)

Sept. 5 -

Sept. 15

Sept. 1- Sept.

30 (General

hunt only)

Sept. 1 -

Sept. 30

Sept. 1 - Sept.

15 (General

hunt only)

Oct. i0 - Nov.

25 (General

hunt only)

Oct. i0 - Nov.

25 (General

hunt only)

xxxvi

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may be issued Unit 20(D), that

portion within the Healy River

drainage

RESIDENT HUNTERS:

1 spike-fork bull or;

1 bull


1 bull

Aug. 15 - Aug.

28

Sept. 1 - Sept.

20


north of the north bank of the

Tanana River and draining into

the Volkmar River east to

include the Billy Creek

drainage, excluding that

portion within the Healy River

drainage

1 bull


1 bull Unit 20(E), that portion

within the Ladue River

Controlled Use Area

RESIDENT HUNTERS:


only as follows:


only; or


up to 100 permits may be issued






Unit 20(E), that portion

draining into the Middle Fork

of the Fortymile River upstream

Sept. 1 - Sept.

20

Sept. 1 - Sept.

15

Aug. 24 - Aug.

28

Nov. 1 - Dec.

i0 (General

hunt only)

Aug. 24 - Aug.

28

xxxvii

Sept. 5 -

Sept. 15

Sept. 1 -

Sept. 20

Sept. 1 -

Sept. 20

Sept. 1 -

Sept. 15

Sept. 8 -

Sept. 17

Sept. 8 -

Sept. 17

from and including the JosephCreek drainageRESIDENT HUNTERS:1 bull

NONRESIDENT HUNTERS:1 bull with 50-inch antlers orantlers with 4 or more browtines on one sideRemainder of Unit 20(E)RESIDENT HUNTERS:1 bull by registration permitonlyNONRESIDENT HUNTERS:1 bull with 50-inch antlers orantlers with 4 or more browtines on one side byregistration permit onlyUnit 20(F), that portiondrained by the Yukon Riverdownstream from, but notincluding, the Hess Creek andTanana River drainages1 bull per regulatory year

unit 20(F), that portiondrained by the Tanana River1 bull

Remainder of Unit 20(F)1 bull

(19)Unit 21(A)RESIDENT HUNTERS:1 antlered bull

NONRESIDENT HUNTERS:1 bull with 50-inch antlers orantlers with 4 or more browtines on one side Unit 21(B),that portion within the NowitnaRiver drainage upstream fromthe Little Mud River drainageand outside a corridorextending two miles on either

Sept. 8 - Sept.17

Aug. 24 - Aug.28

Sept. 1 - Sept.2ODec. 1 - Dec.i0Sept. 1 - Sept.20

Sept. 1 - Sept.15

Sept. 5 - Sept.25

xxxviii

Sept. 8 -Sept. 17

Sept. 8 -Sept. 17

Sept. 8 -Sept. 17

No openseason.

No openseason.

No openseason.

Sept. 5 -Sept. 20

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side of and including the

Nowitna River

RESIDENT HUNTERS:

1 bull




tines on one side


RESIDENT HUNTERS:


only; or



in Unit 21(B)






may be issued in Unit 21(B)

Unit 21(C) Unit 21(C) that

portion within the Dulbi River

drainage

RESIDENT HUNTERS:

1 bull, by registration permit

only; or

1 bull, by drawing permit only;

up to i00 permits may be issued

in Unit 21(C)




tines on one side, by drawing

permit only; up to i00 permits

may be issued in Unit 21(C)


RESIDENT HUNTERS

1 bull

NONRESIDENT HUNTERS


Aug. 22 - Aug.

31

Sept. 5 - Sept.

25 (Subsistence

hunt only)

Sept. 5 - Sept.

25

Sept. 5 Sept.

25 (Subsistence

hunt only)

Sept. 5 Sept.

25

Sept. 5 Sept.

25

xxxix

Sept. 5 -

Sept. 25

Sept. 5 -

Sept. 25

Aug. 22 - Aug.

31

Sept. 5 -

Sept. 25

Sept. 5 -

Sept. 25

Sept. 5 -

I


tines on one side Unit 21(D),

that portion within the Koyukuk

Controlled Use Area

RESIDENT HUNTERS:


only; or



in combination with Unit 24,


Controlled Use Area





permit; up to 80 permits may be

issued in combination with Unit

24, that portion within the

Koyukuk Controlled Use Area


RESIDENT HUNTERS:


only; or



in Unit 21(D) outside the

Koyukuk Controlled Use Area; or






may be issued in Unit 21(D)

outside the Koyukuk Controlled

Use Area

Unit 21(E)

RESIDENT HUNTERS:

1 antlered bull



Sept. 1 - Sept.

25 (Subsistence

hunt only)

Sept. 5 - Sept.

25

Aug. 22 - Aug.

31 Sept. 5

Sept. 25

(Subsistence

hunt only)

Sept. 5 - Sept.

25

Sept. 5 - Sept.

25

xl

Sept. 25

Sept. 5 -

Sept. 25

Sept. 5 -

Sept. 25

Sept. 5 -

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permit only; up to i00 permits

may be issued; up to 20 percent

of the permits may be issued to

hunters using a registered

guide

(20)

Unit 22(A), that portion north

of and including the Tagoomenik

and Shaktoolik River drainages

RESIDENT HUNTERS:

1 bull




tines on one side Unit 22(A)

that portion in the Unalakleet

River drainage and all

drainages flowing into Norton

Sound north of the Golsovia

River drainage and south of the

Tagoomenik and Shaktoolik River

drainages


permit only


RESIDENT HUNTERS:

1 bull; or 1 antlered bull




tines on one side Unit 22(B),

East, that portion east of the

Darby Mountains, and including

the drainages of the Kwiniuk,

Tubutulik, Koyuk, and

Inglutalik Rivers

RESIDENT HUNTERS:





Aug. 1 - Sept.

30

Sept. 25

Sept. 1 -

Sept. 14

Sept. 1 Sept. No open

14 season.

xli

Aug. 1 - Sept.

30

Aug. 1 Sept.

30

Jan. 1 - Jan.

31

Sept. 1 -

Sept. 30

Nov. 1 - Dec.

31

Nov. 1 - Dec.

31

tines on one side by drawingpermit only; up to i0 permitsmay be issuedRemainder of Unit 22 (B)RESIDENT HUNTERS:1 bull by registration permitonly; or1 antlered bull by registrationpermit onlyNONRESIDENT HUNTERS:Unit 22 (C)

RESIDENT HUNTERS:


only; or




permit only; during the period

Jan. 1 - Jan. 31, a season may

be announced by emergency order







the Kougarok, Kuzitrin, and

Pilgrim River drainages

RESIDENT HUNTERS:


only; or






Unit 22(D) Southwest, that

portion west of the Tisuk River

drainage, west of the west bank

of the unnamed creek

originating at the unit

boundary opposite the

headwaters of McAdam's Creek to

its confluence with Canyon

Creek, and west of the west

Sept. 1 - Sept.

14

Jan. 1 - Jan.

31

Sept. 1 - Sept.

14

Sept. 15 -

Sept. 30

Jan. 1 Jan.

31

Sept. 1 - Sept.

14

Jan. 1 - Jan.

31

xlii

No open

season.

(To be

announced)

Sept. 1 -

Sept. 14

(To be

announced)

No open

season.

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bank of Canyon Creek to its

confluence with Tuksuk Channel

RESIDENT HUNTERS:


only; or







RESIDENT HUNTERS:

1 moose; however, antlerless

moose may be taken only from

Dec. 1 - Dec. 31; a person may


accompanied by a calf; only

antlered moose may be taken

from Jan. 1 - Jan. 31






Unit 22(E)

RESIDENT HUNTERS:







(21)

Unit 23, that portion north of

and including the Singoalik

River drainage

RESIDENT HUNTERS:

1 moose by registration permit

only; however, antlerless moose

may be taken only from Nov. 1 -

Dec 31; a person may not take a

calf or a cow accompanied by a

calf; or


Sept. 1 - Sept.

14

Jan. 1 - Jan.

31

Aug. i0 - Sept.

14

Aug. 1 - Dec.

31

July 1 - Dec.

31

Sept. 1 - Sept.

xliii

(To be

announced)

No open

season.

Oct. 1 - Jan.

31

Sept. 1 -

Sept. 14

Jan. 1 - Jan.

31

Sept. 1 -

Sept. 14

antlers with 4 or more browtines on one sideNONRESIDENT HUNTERS:1 bull with 50-inch antlers orantlers with 4 or more browtines on one side by drawingpermit only; up to 125 permitsmay be issued in all of Unit 23

Remainder of Unit 23

RESIDENT HUNTERS:

1 moose by registration permit

only; however, antlerless moose

may be taken only from Nov. 1 -

Dec. 31; a person may not take

a calf or a cow accompanied by

a calf; or



tines on one side






may be issued in all of Unit 23

(22)

Unit 24(A), that portion in the

Dalton Highway Corridor

Management Area

RESIDENT HUNTERS:

1 bull, by drawing permit up to

70 permits may be issued in

combination with Unit 25(A),

that portion within the Dalton

Highway Corridor Management

Area







with unit 25(A), that portion

within the Dalton Highway

Corridor Management Area


20

Aug. 1 - Dec.

31

Sept. 1- Sept.

20

Sept. 1 - Sept.

25

xliv

Sept. 1 -

Sept. 20

Sept. 1 -

Sept. 20

Sept. 5 -

Sept. 25

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RESIDENT HUNTERS:

1 bull




tines on one side, Unit 24(B)

all drainages of the Koyukuk

River upstream from the Henshaw

Creek drainage, excluding the

North Fork of the Koyukuk River

drainage

RESIDENT HUNTERS:

1 bull




tines on one side


RESIDENT HUNTERS:

1 bull; or for up to four years

beginning on July i, 2010, 1

antlered bull by registration

permit only




tines on one side Unit 24(C),


Controlled Use Area

RESIDENT HUNTERS:


only; or



in combination with Units 21(D)

and 24(D), those portions

within the Koyukuk Controlled

Use Area; or

for up to four years beginning

on July i, 2010, 1 antlered

bull by registration permit

only


Sept. 1 - Sept.

25

Sept. 1 - Sept.

25

Sept. 1 - Sept.

25 (Subsistence

hunt only)

Sept. 1 - Sept.

25 (Subsistence

hunt only)

Dec. 15 - Apr.

15 (Subsistence

hunt only)

xlv

Sept. 5 -

Sept. 25

Sept. 5 -

Sept. 25

Dec. 15 - Apr.

15

Sept. 5 -

Sept. 25

Sept. 5 -

Sept. 25

• I






with Units 21(D) and 24(D),

those portions within the



RESIDENT HUNTERS:


only; or



in combination with Unit 24(D)

outside the Koyukuk Controlled

Use Area; or

for up to four years beginning

on July i, 2010, 1 antlered

bull by registration permit

only





permit; up to 450 permits may

be issued in combination with

Unit 24(D) outside the Koyukuk

Controlled Use Area


the Koyukuk Controlled Used

Area

RESIDENT HUNTERS:

1 bull by

registration

permit only; or



in combination with Units 21(D)

and 24(C), those portions

within the Koyukuk Controlled

use Area; or

1 bull

Sept. 5 - Sept.

25 (Subsistence

hunt only)

Dec. 15 - Apr.

15 (Subsistence

hunt only)

Sept. 1 - Sept.

25 (Subsistence

hunt only)

Sept. 5 - Sept.

25

Dec. 1 - Dec.

xlvi

Sept. 5 -

Sept. 25

Sept. 5 -

Sept. 25

Sept. 5 -

Sept. 25

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with Units 21(D) and 24(C),

those portions within the



RESIDENT HUNTERS:

1 bull by drawing permit; only;

or



in Unit 24 outside the Koyukuk

Controlled Use Area





permit; up to 450 permits may

be issued in Unit 24 outside

the Koyukuk Controlled Use Area

(23) Unit 25(A), that portion



RESIDENT HUNTERS:

1 bull, by drawing permit; up

to 70 permits may be issued in

combination with Unit 24, that

portion within the Dalton

Highway Corridor Management

Area







with Unit 24, that portion



i0 (Subsistence

hunt only)

Sept. 5 - Sept.

25 (Subsistence

hunt only)

Sept. 5 - Sept.

25

Sept. 1 Sept.

25

xlvii

Sept. 5 -

Sept. 25

Sept. 5 -

Sept. 25

Sept. 5 -

Sept. 25

I


RESIDENT HT/NTERS:

1 bull




tines on one side Unit 25(B),

that portion within the

Porcupine River drainage

upstream from but excluding the

Coleen River drainage

RESIDENT HUNTERS:

1 bull




tines on one side Remainder of

Unit 25(B)

RESIDENT HUNTERS:


only as follows:

1 bull; or

1 bull per community harvest

report by community harvest

permit in an established

community harvest area




tines on one side Unit 25(c)

1 bull


west of a line extending from

the Unit 25(D) boundary on

Preacher Creek, then downstream

along the west banks of

Preacher Creek, Birch Creek,

and Lower Mouth Birch Creek to

the Yukon River, then

Sept. 5 - Sept.

25

Sept. i0 -

Sept. 25

(General hunt

only)

Sept. 5 - Sept.

25

Sept. 5 - Sept.

25 (Subsistence

hunt only)

Sept. 1 - Sept.

15 (General

hunt only)

Sept. 5 -

Sept. 25

Sept. i0 -

Sept. 25

Dec. 1 - Dec.

15

Dec. 1 - Dec.

15

(Subsistence

hunt only)

Sept. 5 -

Sept. 25

Sept. 5 -

Sept. 15

xlviii

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downstream along the north bank

of the Yukon River (including

islands) to the confluence of

the Hadweenzik River, then

upstream along the west bank of

the Hadweenzik River to the

confluence of Forty and One-

Half Mile Creek, then upstream

along Forty and One-Half Mile

Creek to Nelson Mountain on the

Unit 25(D) boundary

1 bull per regulatory year by

Tier II subsistence hunting


may be issued


RESIDENT HUNTERS:


only as follows:

1 bull; or

1 bull per community harvest

report by community harvest

permit in an established

community harvest area




tines on one side (24) Unit

26(A), that portion in the

Colville River drainage

upstream from and including the

Anaktuvuk River drainage

1 bull; or


up to 40 permits may be issued;

up to 20 percent of the permits

may be issued to nonresident

hunters; or

1 moose; a person may not take

a calf or a cow accompanied by

a calf Unit 26(A), that portion

west of 1568 00' W. longitude

excluding the Colville River

drainage

1 moose; a person may not take

Aug. 25 - Feb.

28 (Subsistence

hunt only)

Sept. i0 -

Sept. 20

Sept. i0 -

Sept. 20

(Subsistence

hunt only)

Aug. 1 - Sept.

14

Sept. 1 - Sept.

14

Feb. 15 - Apr.

15

July 1 - Sept.

xlix

No open

season.

Feb. 18 - Feb.

28

Feb. 18 - Feb.

28

(Subsistence

hunt only)

Sept. i0 -

Sept. 20

No open

season.

Sept. 1

Sept. 14

No open

season.

No open

a calf or a cow accompanied bya calfRemainder of Unit 26(A)1 bull

Unit 26(B), excluding the

Canning River drainage

RESIDENT HUNTERS:



or

1 bull; during the period Feb.

15- April 15, up to a 14-day

season may be announced by

emergency order



Unit 26(C), that portion in the

drainages of Firth River and

Mancha Creek and the upper

Kongakut River, upstream from

and including Drain Creek

RESIDENT HUNTERS:






tines on at least one side, by

drawing permit only; up to 30

permits may be issued;


14 season.

Aug. 1 - Sept. No open

14 season.

Sept. 1 - Sept.

14

(To be No open

announced) season.

No open season.

Sept. 1 - Sept.

25

Sept. 1- Sept.

25

No open

season.

5 AAC 92.072 Community Subsistence Harvest Hunt Area and

Permit Conditions

(a) The commissioner or the commissioner's designee may, under

this section and 5 AAC 92.052, issue a community-based

subsistence harvest permit and harvest reports for big game

species where the Board of Game (board) has established a

community harvest hunt area under (b) of this section and 5 AAC

92.074.

(b) The board will consider proposals to establish community

harvest hunt areas during regularly scheduled meetings to

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consider seasons and bag limits for affected species in a hunt

area. Information considered by the board in evaluating the

proposed action will include

(i) a geographic description of the hunt area;

(2) the sustainable harvest and current subsistence regulations

and findings for the big game population to be harvested;

(3) a custom of community-based harvest and sharing of the

wildlife resources harvested in the hunt area; and

(4) other characteristics of harvest practices in the hunt area,

including characteristics of the customary and traditional

pattern of use found under 5 AAC 99.010(b).

(c) If the board has established a community harvest hunt area

for a big game population, residents of the community may elect

to participate in a community harvest permit hunt in accordance

with the following conditions:

(i) a hunt administrator representing a group of residents may

apply to the department for a community harvest permit by

identifying the community harvest hunt area and the species to

be hunted, and by requesting community harvest reports

sufficient to supply the estimated number of individuals who

will subscribe to the community harvest permit; the hunt

administrator

(A) must record and maintain a record of the names of residents

subscribing to the community harvest permit and the residents

hunting license number, permanent hunting identification card

number, customer service identification number, or birth date

for residents under 16 years of age;

(B) must issue harvest reports to hunters who have subscribed to

the community harvest permit, but may not issue more individual

harvest reports than the sum of the individual bag limits of the

number of the residents who have subscribed to the permit;

(C) must request additional harvest reports for a community

harvest permit from the department during a hunting season if

the number of people subscribing to the hunt exceeds the

original estimate;

(D) must collect validated harvest reports from hunters

following the take of individual game animals, record harvest

information for individual animals taken, and collect biological

samples or other information as required by the department for

management;

(E) must provide the department with harvest information,

including federal subsistence harvest information, within a

specified period of time when requested, and a final report of

all game taken under the community harvest permit within 15 days

of the close of the hunting season or as directed in the permit;

and

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(F) must make efforts to ensure that the applicable customary

and traditional use pattern described by the board, if any, is

observed by subscribers including meat sharing; the applicable

board finding will be identified on the permit; this provision

does not authorize the hunt administrator to deny subscription

to any community resident;

(2) a resident of the community who elects to subscribe to a


(A) may not hold a harvest ticket or other state hunt permit for

the same species where the bag limit is the same or for fewer

animals during the same regulatory year, however a person may

hold harvest tickets or permits for same-species hunts in areas

with a larger bag limit following the close of the season for

the community harvest permit;

(B) may not subscribe to more than one community harvest permit

for a species during a regulatory year;

(C) must have in possession when hunting and taking game a

community harvest report issued by the hunt administrator for

each animal taken;

(D) must validate a community harvest report immediately upon

taking an animal; and

(E) must report harvest and surrender validated harvest reports

to the hunt administrator within 5 days, or sooner if required

by the department, of taking an animal and transporting it to

the place of final processing for preparation for human use and

provide the hunt administrator with information and biological

samples recgfired under terms of the permit;

(F) must, if the community harvest hunt area is under a Tier II

permit requirement for the species to be hunted, have received a

Tier II permit for that area, species, and regulatory year.

(d) Seasons for community harvest permits will be the same as

those established for other subsistence harvests for that

species in the geographic area included in a community harvest

hunt area, unless separate community harvest hunt seasons are

established. The total bag limit for a community harvest permit

will be equal to the sum of the individual bag limits

established for other subsistence harvests for that species in

the hunt area. Seasons and bag limits may vary within a hunt

area according to established subsistence regulations for

different game management units or other geographic delineations

in a hunt area.

(e) Establishment of a community harvest hunt area will not

constrain nonsubscribing residents of the community from

participating in subsistence harvest activities for a species in

that hunt area using individual harvest tickets or other state

permits authorized by regulation, nor will it require any

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resident of the community eligible to hunt under existing

subsistence regulations to subscribe to a community harvest

permit.

(f) The department may disapprove an application for a community

subsistence harvest permit from a hunt administrator who has

previously failed to comply with requirements in (c) (i) of this

subsection.

(g) A person may not give or receive a fee for the taking of

game or receipt of meat under a community subsistence harvest

permit.

(h) In this section, "fee"

(i) means a payment, wage, gift, or other remuneration for

services provided while engaged in hunting under a community

harvest permit;

(2) does not include reimbursement for actual expenses incurred

during the hunting activity within the scope of the community

harvest permit, or a non-cash exchange of subsistence-harvested

resources.

5 AAC 92.074. Community subsistence harvest hunt areas.

(a) The commissioner may issue community subsistence harvest

permits for designated big game species in the areas specified

in this section.

(b) Chalkyitsik Community Harvest Area for moose: That portion

of Unit 25(B), including the drainage of the Salmon Fork River

and drainage of the Black River, downstream from Bear Mountain

Creek, that portion of Unit 25(D), including the Black River

drainage, upstream from Englishshoe Bar, the portion of the

Porcupine River drainage from the lower mouth of Curtis Slough

upstream to the upper mouth of Rock Slough, and the drainage of

the Grass River north of the south bank of the Grass River east

of 1448 15' W. longitude.

(c) Yukon Flats Community Harvest Area for black bears: Includes

all of Unit 25(D).

(d) Gulkana, Cantwell, Chistochina, Gakona, Mentasta, Tazlina,

Chitina, and Kluti Kaah Community Harvest Area for moose and

caribou: Includes all of

(i) that area draining into the Copper River from the north side

of Miles Glacier, and east of the easternmost bank of the Copper

River from Miles Glacier north to the Slana River, then along

the east bank of the Slana River to Suslota Creek, then south of

the south bank of Suslota Creek to Noyes Mountain;

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(2) that portion including all drainages into the west bank ofthe Little Tok River, from its headwaters in Bear Valley at theintersection of the unit boundaries of Units 12 and 13 to its

junction with the Tok River, and all drainages into the south

bank of the Tok River from its junction with the Little Tok

River to the Tok Glacier, and that area westerly of the

easternmost bank of the Copper River and drained by all

tributaries into the west bank of the Copper River from Miles

Glacier north to the confluence with the Slana River, then along

the east bank of the Slana River to Suslota Creek, and that area

of the Slana River drainage north of the south bank of Suslota

Creek;

(3) the drainages into the Delta River upstream from Falls Creek

and Black Rapids Glacier;

(4) the drainages into the Nenana River upstream from the

southeast corner of Denali National Park at Windy;

(5) the drainages into the Susitna River upstream from its

junction with the Chulitna River;

(6) the drainages into the east bank of the Chulitna River

upstream to its confluence with Tokositna River;

(7) the drainages of the Chulitna River (south of Denali

National Park) upstream from its confluence with the Tokositna

River;

(8) the drainages into the north bank of the Tokositna River

upstream to the base of the Tokositna Glacier;

(9) the drainages into the Tokositna Glacier;

(i0) the drainages into the east bank of the Susitna River

between its confluences with the Talkeetna and Chulitna Rivers;

(ii) the drainages into the north and east bank of the Talkeetna

River, including the Talkeetna River, to its confluence with

Clear Creek, the eastside drainages of a line going up the south

bank of Clear Creek to the first unnamed creek on the south,

then up that unnamed creek to lake 4408, along the northeast

shore of lake 4408, then southeast in a straight line to the

northernmost fork of the Chickaloon River;

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(12) the drainages into the east bank of the Chickaloon River

below the line from lake 4408; and

(13) the drainages of the Matanuska River above its confluence

with the Chickaloon River.

5 AAC 99.010 Boards of fisheries and game subsistence

procedures

(a) In applying a subsistence law, the Board of Fisheries and

the Board of Game will provide for conservation and development

of Alaska's fish and game resources according to sustained yield

principles.

(b) Each board will identify fish stocks or game populations, or

portions of stocks or populations, that are customarily and

traditionally taken or used by Alaska residents for subsistence

uses by considering the following criteria:

(i) a long-term consistent pattern of noncommercial taking, use,

and reliance on the fish stock or game population that has been

established over a reasonable period of time of not less than

one generation, excluding interruption by circumstances beyond

the user's control, such as unavailability of the fish or game

caused by migratory patterns;

(2) a pattern of taking or use recurring in specific seasons of

each year;

(3) a pattern of taking or use consisting of methods and means

of harvest that are characterized by efficiency and economy of

effort and cost;

(4) the area in which the noncommercial, long-term, and

consistent pattern of taking, use, and reliance upon the fish

stock or game population has been established;

(5) a means of handling, preparing, preserving, and storing fish

or game that has been traditionally used by past generations,

but not excluding recent technological advances where

appropriate;

(6) a pattern of taking or use that includes the handing down of

knowledge of fishing or hunting skills, values, and lore from

generation to generation;

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(7) a pattern of taking, use, and reliance where the harvest

effort or products of that harvest are distributed or shared,

including customary trade, barter, and gift-giving; and

(8) a pattern that includes taking, use, and reliance for

subsistence purposes upon a wide diversity of fish and game

resources and that provides substantial economic, cultural,

social, and nutritional elements of the subsistence way of life.

(c) When circumstances such as increased numbers of users,

weather, predation, or loss of habitat may jeopardize the

sustained yield of a fish stock or game population, each board

will exercise all practical options for restricting

nonsubsistence harvest of the stock or population and may

address other limiting factors before subsistence uses are

restricted below the level the board has determined to provide a

reasonable opportunity. If all available restrictions for

nonsubsistence harvests have been implemented and further

restrictions are needed, the board will eliminate nonsubsistence

consumptive uses, and reduce the take for subsistence uses in a

series of graduated steps under AS 16.05.258(b) (4) (B) - the

_Tier II" distinction - by distinguishing among subsistence

users through limitations based on

(i) the customary and direct dependence on the fish stock or

game population by the subsistence user for human consumption as

a mainstay of livelihood;

(2) the proximity of the user's domicile to the stock or

population; and

(3) the ability of the subsistence user to obtain food if

subsistence use of the stock or population is restricted or

eliminated.

Constitutional Provisions

Article VIII, Sections 3, 15, & 17

Section 3 - Common Use

Wherever occurring in their natural state, fish, wildlife, and

waters are reserved to the people for common use.

Section 15 - Exclusive Right of Fishery

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No exclusive right or special privilege of fishery shall be

created or authorized in the natural waters of the State. This

section does not restrict the power of the State to limit entry

into any fishery for purposes of resource conservation, to

prevent economic distress among fishermen and those dependent

upon them for a livelihood and to promote the efficient

development of aquaculture in the State.

Section 17 - Uniform Application

Laws and regulations governing the use or disposal of natural

resources shall apply equally to all persons similarly situated

with reference to the subject matter and purpose to be served by

the law or regulation.

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X. AR&_MENT

The question the Court must decide is whether the Board of

Game (BOG) may establish harvest priorities among similarly

situated subsistence users, when the available supply of animals

exceeds all subsistence demand.

The BOG believes that communities that practice local

indigenous use patterns should be provided a harvest priority

over all other subsistence uses and users, and have embarked on

a regulatory _experiment" intended to give Ahtna residents of

the Copper Basin an advantage over other Alaskans who wish to

harvest moose and caribou for their families' consumption. Ahtna

admits; "This CSH is based on a pattern of use established

primarily by the Ahtna villages in the Copper Basin. "I

This Court has never before allowed the BOG to distinguish

among Alaskans for access to a plentiful Tier I resource.

The BOG does not believe the Constitution requires all

Alaskans be provided equal subsistence opportunities for Tier I

subsistence resources because they do not believe non-local

residents are "true" subsistence users, and therefore, non-local

hunters may be discriminated against by first defining the local

use pattern, then granting those who practice that pattern a

better opportunity to harvest. [Exc. 361 - 368]

i See, Ahtna Appellee Brief, pg. 20 citing excerpt 362

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In Alaska, all state residents are subsistence users. 2 By

law, subsistence users must be given a harvest priority over

other users, including all non-resident users.

In the State's brief, the Attorney General states:

"If all sport hunters are also subsistence hunters,

the priority for subsistence uses over consumptive

uses in A.S. 16.05.258(b) (2-4) would be meaningless. "3

This statement demonstrates a fundamental misunderstanding

concerning the language, intent, and judicial history of the

common use clauses of the Alaska Constitution (Article VIII,

Sections 3, 15, & 17), and the State's subsistence statute, A.S.

16.05.258, and ignores the fact that all non-resident use is

excluded unless and until all subsistence needs are

accommodated. Neither the State, nor Ahtna, has offered any

legislative history, constitutional history, or court precedent

that would allow the BOG to adopt primary and secondary

subsistence use patterns on the same game population, and then

grant preferences to the primary use pattern. The

constitutional mandate of equal access, the history and language

of the subsistence statute, and several Supreme Court opinions

regarding subsistence, all point to the inescapable conclusion

that when supply exceeds all subsistence demand (Tier I), the

BOG cannot discriminate between Alaskans based on their "use

2 Madison v. Alaska Dept. of Fish & Game, 696 P.2d 168 (Alaska

1985); State v. Morry, 836 P.2d 358 (Alaska 1992)

3 State of Alaska's Appellee, pg. 5, fn ii

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pattern", residence, or any other individual or community

characteristic.

The only authority for the current discriminatory CSH

regime in the Copper Basin is A.S. 16.05.330(c), a pre-McDowell 4

statute that has remained dormant for the past 23 years other

than to create two small scale proxy hunts (Chalkyitsik moose 5

and Yukon Flats black bear). 6 These two hunts specifically did

not create longer seasons or more generous bag limits, but

merely legitimized the otherwise illegal practice of "party

hunting" where skilled hunters were allowed to fill the bag

limit of other community members. The legality of these

community proxy hunts, or the enabling statute A.S.

16.05.330(c), has never been challenged. If A.S. 16.05.330(c)

is still constitutionally legitimate post-McDowell, it must be

narrowly interpreted by this Court to only permit a community

based proxy system and may not be used to discriminate among

Alaskans for access to a plentiful resource.

Contrary to the State's assertion, the subsistence law

would be far from _meaningless" if the Court nullified the CSH,

and reminded the BOG that they cannot discriminate between

Alaskan subsistence hunters. The law would still, as it always

has done, ensure a preference for all Alaskans over non-

4McDowell v. State, 785 P.2d 1 (Alaska 1989)

5 5 A.A.C. 92.074(b)

6 5 A.A.C. 92.074(c)

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residents for access to any Tier I C&T harvest of a game

population, and to allow meaningful distinctions between

subsistence users when the demand exceeds supply (Tier II).

II. CONSTITUTIONAL LAW

Judge McConahy was wrong when he commented that the CHP 7 did

not make any distinctions between persons "similarly situated",

[Exc. 444 - 445] and therefore avoided application of the

_demanding scrutiny" standard of equal protection analysis. In

fact, the CSH draws distinctions between i) persons who are able

to join a community of 25 other Alaskans and pledge to adhere to

Ahtna cultural traditions, and 2) all other Alaskan subsistence

hunters who are unwilling or unable to do so.

In Alaska Fish Spotters Ass'n v. State Dept. of Fish and

Game s and again in Interior Alaska Airboat Ass'n v. State Dept.

of Fish and Game 9, this Court dismissed equal protection

arguments raised against a regulation prohibiting airplanes

(Fish Spotters) and airboats (IAAA) as access devices to

commercial fishing and sport hunting.

We have consistently defined _user groups" in terms of

the nature of the resource ( i.e., fish or wildlife)

7 The Board called this hunt a CHP. The name of the actual

codified hunt is a CSH. The name and virtually all the hunt

conditions passed by the Board were later modified by an unnamed

ADFG regulation specialist and the Board's attorney, Mr. Saxby,

who has assured the Board he could defend the Ahtna community

hunt since it was first discussed in 2009.

8 838 P.2d 798 (Alaska 1992)

9 18 P.3d 686 (Alaska 2001)

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and the nature of the use ( i.e., commercial, sport or

subsistence). I°

It is erroneous not to consider the Ahtna-centric hunt

conditions (even as sanitized in the final codified version) and

community affiliation requirement as distinguishing among

persons similarly situated because the CSH creates preferential

opportunities between _user groups" in terms of the mature of

the resource (Unit 13 caribou and moose and the mature of the

use (Tier I subsistence).

In light of this Court's numerous interpretations of the

equal access clauses of the Alaska Constitution (Article VIII,

Sections 3, 15, & 17), the Copper Basin CSH should be stricken

as an unconstitutional attempt to create preferences among

Alaskans based on the BOG's subjective assessment of which _use

pattern" should receive preferential access to subsistence

resources over other "use patterns".

Article VIII, Section 17 requires that hunting regulations;

"...shall apply equally to all persons similarly situated with

reference to the subject matter and purpose to be served by the

regulation." Can the Board of Game determine that a subsistence

user who consumes organs, harvests offal and fat, shares meat,

or attends potlatches be awarded preferential opportunities to

10 Alaska Fish Spotters Ass'n v. State Dept. of Fish and Game,

838 P.2d 798 (Alaska 1992) citing McDowell v. State, 785 P.2d at

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(Alaska 1988)

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harvest commonly owned resources? If so, can the BOG impose

other individual or group distinguishing characteristics that

they believe identify the _true subsistence user", and

ultimately award all available subsistence resources to those

preferred users?

Judge Bauman correctly struck down the BOG's first attempt

to establish harvest preferences for the Ahtna inhabitants of

the Copper Basin. Judge McConahy was confused by the "open

entry" argument made by the State, and failed to address the

exclusive allocation of 70 "any bull" moose in regards to

Article VIII, Section 15 and 5 A.A.C. 92.072(d) .

Judge McConahy erroneously relied on a case, State v.

Hebert, 11 that allowed distinctions in a commercial herring

fishery to favor local fishers. That reliance is misplaced.

Commercial fisheries are generally excepted from the application

of Article VIII, Sections 3, 15, & 17 due to the limited entry

act which created exclusive rights of fishery.

Commercial fishers have no statutory preference to harvest

as does subsistence. Commercial fishers are strictly limited in

number, and managed by gear type, vessel, length, and other

complicated formulas that are deemed necessary for i) orderly

administration of this industry, and 2) for conservation

purposes.

11 State v. Hebert, 803 Po2d 863 (Alaska 1990)

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Neither Ahtna nor the State have shown why the Court's

subsequent decision in Grunert v. State 12 (Grunert i), and State

v. Grunert 13 (Grunert 2), prohibiting preferences to community

fishing groups over individual fishers, are not controlling if

commercial fish regulations are even relevant to subsistence

game management, in what had always been managed as a single

fishery. If the relevant herring fishery at issue in Hebert had

been managed as separate fisheries, and the B0F has always had

authority to allocate between the different user groups in any

commercial fishery. What neither Board can do (as decided in

Grunert) is to allow communities to pool their permits then

award those communities an increased allocation over individual

permit holders.

Judge McConahy failed to consider Grunert or the fact that

commercial fishing is largely exempt from the equal access

clauses due to the limited entry act, and the realities of

managing such a complicated harvest with so many gear groups

competing for a limited resource that migrates, intermingles,

and is almost impossible to quantify in season.

In addition to erroneously stating that the State appealed

Judge Bauman's decision in the Ahtna I (Alaska Supreme Court

12 Grunert v. State, 109 P.3d 924 (Alaska 2005)

13 State v. Grunert, 139 P.3d 1226 (Alaska 2006)

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Case No. S-13958) appeal, 14 Ahtna also erroneously interprets

A.S. 16.05.258(b) to create a mandate for the Board to afford a

reasonable opportunity to meet the subsistence needs of each

pattern of use. 15 The subsistence statute very clearly only

allows distinctions at the Tier II level, and the maxim

"expressio unius est exclusion alterius "16 should guide the Court

in determining that the legislature never intended to allow

discrimination between Alaskans at the Tier I level of

abundance, particularly in light of the legislative history

recognized in Madison;

"...the legislature intended to protect subsistence use,

not limit it. The words "customary and traditional"

serve as a guideline to recognize historical

subsistence use by individuals, both [N]ative and non-

[N]ative Alaskans. In addition, subsistence use is not

strictly limited to rural communities. For these

reasons, the Board's interpretation of 'customary and

traditional' as a restrictive term conflicts squarely

with the legislative intent. _17

14 See, Ahtna's Appellee Brief, pg. 5

15 Id. at page 9

16 When certain things are designated in a statute [distinguish

at Tier II] all omissions should be understood as exclusions

[cannot distinguish at Tier I]

i_ Madison v. Alaska Dept. of Fish & Game, 696 P.2d 168, 174-176

(Alaska 1985)

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III, STA_TORYAND REGULATORY LAW

The subsistence statute and resulting regulation in Alaska

(as thoroughly detailed in Ahtna I, and incorporated herein by

reference) focus on identifying game populations in subsistence

use areas (all rural that have customarily and traditionally

been used for subsistence. Once a positive C&T finding is made,

the statute requires the Board to identify whether the

harvestable surplus meets subsistence demand. If harvestable

surplus exceeds demand (Tier I), the Board lacks authority to

distinguish between Alaskans. Is Both the State and Ahtna argue

that the legislature's invocation of "subsistence uses" in A.S.

16.05.258(2) (B) and the phrase; ...subject to preferences among

beneficial uses, as found in A.S. 16.05.258(i) (B) justifies

defining different types of subsistence uses, and declaring

which uses should be provided preferential access to a resource

that, by definition, has already been determined to adequately

provide for all subsistence uses by Alaska residents.

There is no judicial precedent for this interpretation.

Every case to examine that clause has addressed allocations

between sport and commercial fishing, 19 or types of commercial

fishing. 2°

is State v. Morry, 836 P.2d 358 (Alaska 1992)

19 Kenai Peninsula Fishermen's Cooperative Association v. State

628 P.2d 897, 904 (Alaska 1981)

2o Alaska Fish Spotters Ass'n v. State Dept. of Fish and Game,

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In State v. Kenaitze 21, this Court observed;

_Without the subsistence priority, a balance may be

struck in allocating fish and game resources between

commercial, sport, and subsistence types of

activities. The interests of all competing users can

be considered. With the statutory subsistence priority

intact no balance is possible as long as a fish or

game population is not sufficient to provide for all.22subsistence uses.

The legislature also emphasized that subsistence be given a

priority over other beneficial uses, and that all subsistence

users (rural or urban, native or non-native) be protected

equally. In the Legislative Intent Section of the subsistence

statute:

The legislature finds that i) there are Alaskans, both

Native and non-Native, who have a traditional, social,

or cultural relationship to and dependence upon the

wild renewable resources produced by Alaska's land and

water; the harvest and use of fish and game for

personal and group consumption is an integral part of

those relationships, 2) although customs, traditions,

and beliefs vary, these Alaskans share ideals of

respect for nature, the importance of using resources

wisely, and the value and dignity of a way of life in

which they use Alaska's fish and game for a

substantial portion of their sustenance; this way of

life is recognized as "subsistence", (3) customary and

traditional uses of Alaska's fish and game originated

with Alaska Natives, and have been adopted and

supplemented by many non-Native Alaskans as well;

these uses, among others, are culturally, socially,

spiritually, and nutritionally important and provide a

sense of identity for many subsistence users, (4)

while Alaska's fish and game are generally still

plentiful, these resources are not unlimited and

cannot provide for every desired use, now or in the

future; competition for and the level of effort on

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2'894 P.2d 632 (Alaska 1995)

22 State v. Kenaitze Indian Tribe, 894 P.2d 632,639 (Alaska 1995)

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these resources have required the legislature and the

Board of Fisheries and Board of Game to establish a

preference for subsistence among the various

beneficial uses of fish and game in the state, and(5)

in most areas of the state, a preference for

subsistence can be provided without an overly

burdensome intrusion upon other consumptive uses of

fish and game. It is the purpose of this Act to i)

develop and maintain healthy fish stocks and game

populations through management based on the sustained

yield principle, and 2) to provide for a preference

for subsistence uses over other consumptive uses of

fish and game resources. It is the intent of the

legislature that i) subsistence uses of Alaska's fish

and game resources are given the highest preference,

in order to accommodate and perpetuate those uses, and

2) this Act does not result in significant

reallocations of fish and game in Alaska. 23

_In McDowell, this Court both quoted and stressed

language holding that people who reside near a fish or

game population do not have a higher claim to that

population than state residents whose domiciles are

more distant:" where the necessity for the

preservation of the wild game and fish exists in

certain territories of the state, that territory may

be segregated for the purpose of regulating the right

- to taking game and fish therein; but the privilege of

taking and using same must be extended to the people

of the state outside of the territory upon the same

terms that are given to those who are residents of the

territory embraced in the legislation. ,24

The State and Ahtna fail to acknowledge that thousands of

non-resident hunters flock to Alaska to harvest moose and

caribou every year. In a Tier II subsistence situation, all

hunting by non-residents is prohibited. In some Tier I hunts

23 Section 1 of chapter i, SSSLA *637 1992

24 McDowell v. State, 785 P.2d 1 12 (Alaska 1989) (quoting Lewis

v. State, Ii0 Ark. 204, 161 S.W. 154, 155-56 (1913)) (emphasis

added by this court in McDowell (emphasis added)

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(namely Copper Basin moose), a limited amount of non-resident

sport hunting is permitted because the harvestable surplus

exceeds the subsistence (all resident hunting) demand. When the

legislature speaks about _preferences among beneficial uses" in

light of the documented history of the subsistence law in

Alaska, it is unreasonable to believe that the legislature

intended (or the Constitution permits) the BOG to create a

hierarchy of Tier I uses, and then provide greater harvest

opportunities to only those Alaska residents who are able to

conform with whatever the Board's romantic notion of which

culture produces the most deserving subsistence user. 5 AAC

99.010(b) defines customary and traditional uses but does not

state that first-tier subsistence rights can be limited to

customary and traditional users. As the Court stated in Madison;

"the phrase 'customary and traditional' modifies the word 'uses'

... it does not refer to users. "25

This CSH arose out of a proposal by Ahtna to create a

special community hunt for only enrolled Ahtna tribal members.

The Board's obvious enthusiasm for an Ahtna preference was

expressed by some Board members, notably Mr. Spraker, who

commented;

25 McDowell v. State, 785 P.2d i,i0 (Alaska 1989) (quoting Lewis

v. State, ii0 Ark. 204, 161 S.W. 154, 155-56 (1913)) (emphasis

added by this court in McDowell), citing Madison v. Alaska Dept.

of Fish & Game, 696 P.2d168, 174 (Alaska 1985)

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"When we have an abundance of a-species like we have

right now in Unit 13, we have an option that we can

spread this out between different users and types of

users...[Exc. 313]

And any ethical hunter will look at this [the CSH],

and they're not going to run in there and try to

overrun the community harvest just because they could

do it. You know, any ethical hunter outside of the

area is going to put in for the drawing and take their

chances in the drawing. Community harvest, now the

Tier I went from one in four years to one per

household per year. That's a huge difference. And I

guess I'm just - I have more faith in hunters that are

willing to share and to recognize the rich, you know,

Native inheritance that we all enjoy in this state.

You know, that we're all proud of in this state. I

mean, these are original people in the state. And for

us to say that we can't share a little bit with a

community like this, I think shame on us. I think we

should be able to do it, and this proposal reflects

that. And I guess I'm not so much concerned about the

absolute legality. I'm concerned about what's right.

And to me, sharing is right." [Exc. 314)

The Board's intent to provide a local Ahtna preference

couldn't be clearer. Mr. Spraker's disdain for any non-local

hunter who might take advantage of the Ahtna-centric CSH is

evident. He did not believe it would be ethical for any non-

local to participate in the CSH. If the BOG "are not so

concerned about the absolute legality" of their discriminatory

regulations, this Court needs to be.

In State v. Kenaitze, 26 this Court held;

Section 3 of Article VIII is particularly strong in

requiring that proximity to the resource be a neutral

factor. It reserves "to the people for common use"

wild fish and game "[w]herever occurring."

26 894 P.2d 632 (Alaska 1995)

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Based on the Ahtna-centric findings of 2006-170 BOG ([Exc.

361 - 368] and the statements from a Board member who championed

this discriminatory scheme, it would be erroneous for any court

to conclude that the equal access clauses of our constitution

are not implicated or that the court should not substitute its

own judgment.

If the Court endorses and approves a scheme that

distinguishes among Alaskan subsistence hunters based on the

Board's definition of a preferred cultural use pattern, there

will be a proliferation of special preferences specifically

designed to benefit rural indigenous Alaskan at the expense of

urban Alaskans. Such a regulatory regime would stand in stark

contrast to the _all Alaskans" policy of subsistence management

that has been uniformly applied by this Court since its Madison 27

decision in 1986, despite continuous attempts by native groups,

some BOG members, and sympathetic Assistant Attorney Generals

who continue to believe that McDowell was wrongly decided and

rural residents should be granted preferential harvest of our

commonly owned resources. The Attorney General argued in

McDowell that the rural limitation on subsistence did not

implicate the constitutional equal access provisions because

anyone could establish their domicile in a rural area, and

27 Madison v. Alaska Dept. of Fish & Game, 696 P.2d 168 (Alaska

1985)

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therefore the statute did not create a _closed class". 2s

Justice Rabinowitz, in dissent, agreed with this logic,

while Justice Matthews and Justice Moore disagreed. Justice

Moore observed; _This is an equal protection case, and an easy

one at that. "29 Justice Matthews recognized that if this

argument were valid;

_Virtually any discrimination based on residence would

be justified--the residents of the disfavored area

could simply move. Such a rationale is inconsistent

with the prevailing approach in territorial

discrimination cases, which is to subject territorial

classifications to scrutiny under the equal protection

clause. -3°

In Owsichek v. State, 31 the Court struck an exclusive

allocation of guide use areas without considering that Mr.

Owsichek could have simply agreed to work under any guide that

was permitted in the area he wanted to guide in. Neither the

State nor Ahtna has explained why the current CSH hunt

conditions are any different that the rural domicile

requirement. They both argue that any Alaskan can choose to

join a community of 25 or more people and agree to follow Ahtna

hunting and sharing customs. Judge McConahy never explained how

the constitution can require an individual to join a large

28 McDowell v. State, 785 P.2d i, 13 (Alaska 1989)

29 McDowell v. State, 785 P.2d 1 (Alaska 1989)

3o Id. at 7 citing Gilman v. Martin, 662 P.2d 120, 125 (Alaska

1983); Neuman, Territorial Discrimination, Equal Protection, and

Self-Determination, 135 U.Pa.L.Rev. 261, 274-75 (1987)

31 763 P.2d 488 (Alaska 1988)

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community and practice Ahtna cultural traditions, but cannot

require an individual to relocate their domicile. If this Court

upheld the CSH because it did not create a _closed class", it

should define exactly what limitations make a class _closed",

therefore, and unconstitutional as opposed to _merely

inconvenient" and therefore constitutional. If this Court

upholds the CSH because arguably anyone could join, it should

define the line between what conditions are so onerous as to

create a closed class, and what conditions will not be

considered constitutional barriers to entry.

A. The eight criteria regulation on which the CSH was

based is unconstitutional

Ahtna's brief in this case emphasizes the significance that

the eight criteria regulation played in the Board's adoption of

the CSH. Ahtna's brief in the-Chitina dipnetting case (S-

14079/14099) lays out their argument for why only rural

residents of subsistence use areas should qualify for the

subsistence preference. This isn't about sharing, it's about

discriminating.

The BOG declared community subsistence uses were more

important than individual subsistence uses based on its Ahtna

centric analysis of the eight criteria regulation, 5 A.A.C.

90.010. [Exc. 361 - 368] Prior to addressing the CHP/CSH legal

issues, in Ahtna 1 and the current case, this Court will have

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likely issued a decision in S-14079/14099, wherein the Chitina

Dipnetters Association and AFWCF have challenged the

constitutionality of the eight criteria regulation facially and

as applied to the Chitina Dipnet fishery. If that regulation is

held unconstitutional, then the BOG's reliance on those criteria

in formulating the CSH must be invalidated. [Exc. 27, 46 - 48]

If the Court does not address the facial validity of 5 A.A.C.

90.010 in S-14079/14099, it should do so in this case. Deciding

any of these three cases on narrow grounds will only provoke

future discrimination and litigation.

The eight criteria regulation is invalid on its face and as

applied because it is inconsistent with the subsistence statute.

The criteria are not necessary to implement the subsistence

statute. The regulation does not serve to clarify any ambiguous

statements by the legislature, but instead introduces a number

of criteria that have no statutory basis and that inevitably

lead to determinations in favor of rural residents that live

near the resource and against non-rural users who travel to the

resource.

In 1982 the BOF and BOG jointly adopted the eight-criterion

regulation, 5 A.A.C. 99.010(b), to guide them in making C&T

determinations. The regulation was adopted as part of the

effort by the Boards to institute a rural limitation on

subsistence uses, an effort that was subsequently declared

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unconstitutional. But even though the rural limitation has been

struck out of the law, the eight criteria regulation designed

and implemented to effectuate the rural limitation remains in

force with only slight modifications. This discriminatory

regulation is not consistent with the subsistence statute and is

not reasonably necessary to carry out the statute's present

language and purpose. Moreover, the regulation continues to

perpetuate an implicit rural preference that is contrary to the

Alaska Constitution as interpreted in McDowel132.

The regulation does not interpret or clarify an ambiguous

term that has not already been defined by the legislature, and

therefore it cannot be said to reflect the application of agency

expertise to a policy question that the legislature committed to

33the agency.

The statute clearly defines customary and traditional

subsistence uses. 34 The statutory definition makes clear that

the legislature did not intend to commit

"criteria" to the discretion of the Boards.

regulation is invalid because it is

interpretation of the current subsistence

the development of

The eight criteria

not a reasonable

statute and court

32 785 P.2d 1 (Alaska 1989)

33 Cf. O'Callaghan v. Rule, 996 P.2d at 94 (stating that whether

a roe stripping regulation issued by ADF&G was consistent with

the salmon waste statute "is one of statutory interpretation to

which we should apply our independent judgment").

34 A.S. 16.05.940(7); A.S. 16.05.258

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precedent. The statute itself is clear and complete, and the

eight criteria - with language commonly used by anthropologists

to describe the customs and traditions of Alaska Natives -- havei

only led to confusion and illegal discrimination against non-

rural Alaskans.

The subsistence statute requires the BOG to identify game

populations "that are customarily and traditionally taken or

used for subsistence. "35 It provides clear definitions for each

of its operative terms. It defines _subsistence uses" as;

the noncommercial, customary and traditional uses of wild,

renewable resources by a resident domiciled in a rural area

of the state 36 for direct personal or family consumption as

food, shelter, fuel, clothing, tools, or transportation,

for the making and selling of handicraft articles out of

non-edible by-products of fish and wildlife resources taken

for personal or family consumption, and for the customary

trade, barter, or sharing for personal or family

consumption; in this paragraph, "family" means persons

related by blood, marriage, or adoption, and a person

living in the household on a permanent basis[.] 37

The statute further defines "customary and traditional" as "the

noncommercial, long-term, and consistent taking of, use of, and

reliance upon fish or game in a specific area and the use

patterns of that fish or game that have been established over a

reasonable period of time taking into consideration the

35 A.S. 16.05.258(a).

36 Although the legislature has never amended the definition to

remove this rural limitation, it is clear that the language has

no force after McDowell.

37 A.S. 16.05.940 (33).

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.38availability of the fish or game.

Thus, the statute itself establishes a simple and

straightforward test for C&T determinations: there must be a

pattern of taking, use, and reliance that is (i) for one of

several enumerated purposes, including for direct personal or

family consumption as food; (2) noncommercial; (3) long-term;

(4) consistent; and (5) established over a reasonable period of

time.

These are the only criteria the statute prescribes to

identify game that is eligible for subsistence harvesting.

However, under the guise of implementing these simple and

straightforward statutory provisions, the Board has continued to

apply the eight criteria regulation (5 A.A.C. 99.010(b)) that

they first adopted in 1982, at a time when there was no

statutory definition of _customary and traditional" and the

Supreme Court had not yet held that a rural preference is

unconstitutional. The regulation is a model of administrative

complexity; and is rife with ambiguity; it ensures that C&T

determinations will focus on the user rather than the use, and

will be deeply subjective; the regulation has virtually no basis

in the statute.

As amended most recently in 1992 and 1993, the eight

criteria regulation provides:

38 A.S. 16.05.940 (7).

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Each board will identify fish stocks or game populations,

or portions of stocks or populations that are customarily

and traditionally taken or used by Alaska residents for

subsistence uses by considering the following criteria:

(1)a long-term consistent pattern of noncommercial taking,

use, and reliance on the fish stock or game population that

has been established over a reasonable period of time of

not less than one generation, excluding interruption by

circumstances beyond the user's control, such as

unavailability of the fish or game caused by migratory

patterns;

(2)a pattern of taking or use recurring in specific seasons

of each year;

(3)a pattern of taking or use consisting of methods and

means of harvest that are characterized by efficiency and

economy of effort and cost;

(4)the area in which the noncommercial, long-term, and

consistent pattern of taking, use, and reliance upon the

fish stock or game population has been established;

(5)a means of handling, preparing, preserving, and storing

fish or game that has been traditionally used by past

generations, but not excluding recent technological

advances where appropriate;

(6)a pattern of taking or use that includes the handing

down of knowledge of fishing or hunting skills, values, and

lore from generation to generation;

(7)a pattern of taking, use, and reliance where the harvest

effort or products of that harvest are distributed or

shared, including customary trade, barter, and gift-giving;

and

(8)a pattern that includes taking, use, and reliance for

subsistence purposes upon a wide diversity of fish and game

resources and that provides substantial economic, cultural,

social, and nutritional elements of the subsistence way of

life. 39

Criterion #i includes all of the statutory requirements for a

39 5 A.A.C. 99.010(b) .

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C&T finding (plus a Board-imposed requirement that defines a

_reasonable period of time" as being no less than "one

generation").

These requirements are clearly designed to paint a picture

of a rural, indigenous community and to establish that community

as the standard against which all activities must be judged to

determine whether they are truly _subsistence uses." The eight

criteria allow those who continue to believe in a rural

preference to justify comparing user groups rather than uses of

a game population. In its appellate brief in the Morry case,

the State pointed out;

_the four superior courts that have attempted to

distinguish between first tier eligibility users, have

all fallen into the trap of applying _customary and

traditional" to users, not uses, inconsistent with

this Court's mandate in Madison. 4°"

To conclude that the BOG fell into the same trap of

applying the customary and traditional test to the users of

Copper Basin moose and caribou, the Court only needs to refer

back to Mr. Spraker's comments:

_When we have an abundance of a species like we have

right now in Unit 13, we have an option that we can

spread this out between different users and types of

users... [Exc. 313]

And also note that the findings at 2006-170 BOG compares

traditional local Ahtna users with non-local users.

40 Madison v. Alaska Dept. of Fish & Game, 696 P.2d 168 ( Alaska

1985)

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B. There is no conceivable basis to support the

constitutional application of A.S. 16.05.330(c) and 5

A.A.C. 92.072

Judge McConahy found that it was _possible that these

provisions could be applied in a manner consistent with Article

VIII - as such, the facial challenge must fail." [Exc. 444]

Ahtna erroneously states that AFWCF; _has agreed...that the

Board has the authority to establish community hunts created

under A.S. 16.05.330(c) and 5 A.A.C. 92.107(2). "41 However, in

AFWCF's Opposition to Ahtna's Cross-Motion for Summary Judgment,

AFWCF exerted considerable effort to demonstrate the

constitutional limits of the CHP statute and implementing

regulation, if the statute and regulation were ultimately deemed

constitutional. In the trial court, AFWCF argued that 5 A.A.C.

92.072(d), if valid, specifically requires that community

harvest hunts be subject to the same bag limits on a per user

basis as individual permits. If this Court agrees, then the 70

_any bull" moose that were exclusively allocated to community

hunters clearly violates the regulation because a community

subsistence hunter enjoys a bag limit of one "any bull" moose,

while the individual subsistence hunter has a bag limit of 0

_any bull" moose. Judge McConahy failed to address the

significant legal issues surrounding the special allocation of

70 _any bull" moose to the CSH, and the State's current attempts

411d. at pg. 26 citing excerpt 387

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to legitimizes this exclusive allocation of a subsistence

resource to a preferred user group is not convincing.

Sport and commercial user groups occupy the same rung at

the bottom of the priority ladder, and both are subject to the

statutory subsistence priority. Commercial and sport fishermen

have the same status (legally) as non-resident and alien

fishermen, and their harvest rights are always trumped by

subsistence needs. This Court's refusal to get involved in an

allocation battle between commercial fishers and sport fishers

in Kenai Peninsula Fishermen's Cooperative Association v. State 42

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is of no consequence to this case for the following reasons: i)

that controversy arose before the subsistence statute was

enacted, 2) that case pre-dates Madison 43, McDowel144, Payton 45,

Morry 46, and almost every other court decision involving

subsistence, and 3) it involved complex allocation decisions

that did not affect any subsistence priority to the fish

involved.

Similarly, the State's reliance on Alaska Fish Spotter's

Association v. State 47 can be easily distinguished. In that

case, this Court rejected an interpretation of the common use

42 628 P.2d 897 (Alaska 1981)

43 696 P.2d 168 (Alaska 1985)

44 785 P.2d 1 (Alaska 1989)

45 Payton v. State, 938 P.2d 1036 (Alaska 1997)

46 State v. Morry, 836 P.2d 358 (Alaska 1992)

47 838 P.2d 798 (Alaska 1992) - See, State of Alaska Appellee

Brief pg. 43

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clause that would obligate the State to guarantee access to a

resource by a person's preferred means or method. 48 That case

only address competing commercial uses, and it prohibited a

method (aerial spotting of fish congregations) for all users.

In another case relied on by the State, 49 Tongass Sport Fishing

Ass'n v. State, 5° the Attorney General cited a finding that

Article VIII limitations on the State's power to restrict access

to user groups did not apply to the State's authority to

allocate fishery resources among sport, commercial, and

51subsistence users.

In this case, AFWCF is not advocating the interests of

sport hunters, non-resident hunters, or non-resident hunters,

all of whom are distinct user groups jointly occupying the

lowest rung of the ladder in game allocation decisions. AFWCF

represents thousands of Alaska subsistence hunters who do not

practice the Ahtna pattern of community subsistence use, but who

believe that the Constitution guarantees that they be provided

the same seasons and bag limits as all other Tier I subsistence

hunters. Contrary to Board member Spraker's opinion that these

(primarily urban) hunters are "unethical", AFWCF believes the

hunters it represents are legitimately asserting their

4s Id. at 801 - See, State of Alaska Appellee Brief pg. 44

49 See, State's Appellee Brief, pg. 43

5o 866 P.2d 1314 (Alaska 1994)

51 866 P.2d 1314, 1318 (Alaska 1994)

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constitutional right to be treated equally with respect to

harvesting a commonly owned resource, and who rely on the

judicial branch to enforce their civil rights.

The exclusive allocation of 70 _any bull" moose to the

BOG's preferred type of subsistence user cannot be reconciled

with the subsistence statute, the equal access clauses, or

relevant prior decisions of this Court. Only a small number of

Alaskan subsistence hunters practice Ahtna cultural hunting

traditions, and have the social connections and logistical

skills available for them to either join or organize a community

of 25 or more Alaskans. These conditions may not (currently) be

as onerous as moving to a rural area to secure subsistence

rights (as argued by the State in its McDowell brief that the

rural limitation did not create a "closed class"). 52

Not surprisingly, Ahtna, Inc. organized the largest

_community" of Copper Basin subsistence hunters, a large

majority of whom allegedly subscribe to Ahtna hunting practices,

and participate in community sharing rituals. The same cannot

be said of most other Alaskan subsistence hunters, especially

one who may choose to live alone in a remote trapper's cabin, or

one who may wear a suit and tie and occupy tall office buildings

in downtown Anchorage or Fairbanks. The recluse trapper (while

perhaps living the quintessential _subsistence way of life")

52 McDowell v. State, 785 P.2d i, 6 (Alaska 1989)

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might not have the technology, social skills, or wherewithal to

join a large community, agree to share his harvest, and to

salvage and consume fat, offal, organs, and other parts of the

animal to which he may have a religious, philosophical, or

gastronomical aversion. These Alaskan subsistence hunters are

discriminated against in their access to subsistence moose and

caribou in the Copper Basin because the CSH does distinguish

between them and the BOG's romantic notion of the stereotypical

Ahtna subsistence hunter.

In light of the following excerpts from the Board's

findings at 2006-170 BOG, the Board's discriminatory intent is

undeniable:

i. There are no non-local traditions of community

wide meat distribution. [Exc. 367]

2. _Widespread community wide sharing is customary

in local [Ahtna] communities, involving all family

members, elders, others in need, and taking place in

formal settings such as during ceremonial

potlatches...successful Ahtna harvesters traditionally

share some of their moose and caribou meet with other

families and communities to meet their social

obligations, and for ceremonial purposes. This,

again, is in contrast to the uses arising out of the

urban areas where hunters are completely free to share

or not share, as they see fit, and there is not a

system of sharing, barter, and exchange...in addition

to the key social and cultural roles of sharing in the

local rural community, sharing of subsistence

resources plays a key economic role in distributing

essential food supply throughout the community. The

Board has concluded it is imperative to accommodate

the customary and traditional family and community

harvest sharing practices as part of the subsistence

way of life to the maximum extent possible. [BOG

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Findings, pg. 7 -Exc. 367]

3. _The Board has concluded it is critical to

emphasize the values associated with the reliance and

dependence on a wide variety of fish and wildlife

resources as an important element of the subsistence

way of life for this [Ahtna] region...this differs

markedly from the more recreational type of uses

arising out of the Alaska's more urban areas, where a

single, focused effort to harvest only one resource in

any given location, and then salvage only what is

legally required from that resource, tends to be a

predominant characteristic." [Exc. 368]

In its brief, Ahtna argues that the BOG's intent in

enacting the original Ahtna CHP and the current CSH as reflected

in the 2006 findings; "Should be welcomed by all those who

practice and/or support the continuation of the subsistence way

of life and implementation of the State's subsistence law

consistent with its intent. "53 If the Court agrees that a

subsistence way of life can only be exercised by local users who

engage in ceremonial sharing and exhibit common cultural

practices in the harvest, preservation, and consumption of

subsistence resources, then it should welcome the community hunt

concept as a long overdue solution to the State's so-called

"subsistence dilemma" of dual subsistence management with the

federal government. If the BOG is allowed to adopt preferential

seasons and bag limits designed to give preferential access and

opportunity to local residents who subscribe to traditional

(always defined as local methods of harvest, preservation,

53 See, Ahtna Appellee Brief, pg. 30

28

sharing, and consumption, then the Court will have opened the

floodgates to an overtly discriminatory system of resource

management that would more effectively discriminate among

Alaskans than the federal rural priority of ANILCA.

The current Copper Basin CSH was modified after the BOG

adopted it at their March, 2011 meeting. It was modified to

leave the door open as far as possible for "unethical hunters"

masquerading as subsistence users who live outside the Ahtna

area to qualify for the priority in order to help the CSH

survive the initial judicial challenge.

The BOF and BOG are currently soliciting proposals for

changes to subsistence regulations that will be considered in

October, 2013. The joint Boards typically only meet once every

i0 years. 54 The BOG meets February 8 - 15, 2013 to address

subsistence hunts in the Copper Basin and specifically the CSH.

Unless this Court issues a comprehensive decision prior to those

meetings, it can expect the BOG to continue discriminating

against non-local Alaskans, and for more litigation to ensue.

This Court should be under no illusion. If it validates

this CSH because of so called open-entry provisions, the Board

will continue to ratchet up the restrictions as each new

"community preference hunt" is advanced by well-funded, highly

54http://www.adfg.alaska.gov/static/regulations/regprocess/PDFs/3

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organized groups of rural residents throughout the state who

believe they are entitled to more and better harvest

opportunities than any other Alaskan. If the Board finds five

separate use patterns, and the harvestable surplus of animals is

four, can it award all four animals to the most preferred use

pattern? Can it award one animal each to the top four use

patterns and deny entirely those who practice the fifth use

pattern? What barriers to entry into the preferred use pattern

can be enacted without making it a closed class?

Can the Board increase minimum community size to i00 to

accommodate a village of i00 who want a legal priority to

harvest "their" animals? AFWCF hopes the Court does not leave

any door open for either Board to continue to discriminate

against urban Alaskans.

This BOG has long pursued an agenda focused on creating de

facto rural priorities for 2012. The BOG has adopted the

following rural priority hunts through the discriminatory

practice of awarding permits only in person at designated

villages:

5 A.A.C. 85.045 Hunting seasons and bag limits for

moose

RM 615 - One antlered bull by permit available in

person at ADF&G in Bethel and villages within GMU 18.

RM620 - One antlered bull by permit available in

person at ADF&G in Goodnews Bay and Platinum.

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RM650- One antlered bull by permit available in personin McGrath and Nikolai and Takotna.

RM832- One bull by permit, available at a checkstation established by ADF&G and Huslia and Hughes.

RM841- One antlered bull by permit available in personin Unalakleet.

RM840- One antlered bull by permit available in personin Teller, White Mt. and Golovin.

RM843- One antlered bull by permit available in personin White Mountain and Golovin.

RM850, 852, 853- One antlered bull by permit availablein person in Nome.

RM849- One antlered bull by permit available in personin Nome, Teller, White Mt. and Golovin.

RM880- One bull by permit available in person atlicense vendors in GMU23.

5 AAC 85.050 Hunting seasons and bag limits formuskoxen;

RX060 - One cow by permit available in person inBethel.

RX061 - One cow by permit available in person inBethel or Mekoryuk.

RX070, RX071 - One bull permits available in person inNewtok.

RXI04- One bull permits available in person at licensevendors in GMU 22E.

5 AAC 85.020. Hunting seasons and bag limits for brownbear;

RB699- One bear by permit available at Nome ADF&G andGMU 22 license vendors.

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5 AAC 85.055. Hunting seasons and bag limits for Dall

sheep;

• RS388, 389- One sheep by permit available in person at

license vendors within GMU23 and Barrow.

5 AAC 92.052 Discretionary permit conditions and

procedures;

• RG471-479 - One goat by permit available in person in

Port Lions, 01d Harbor, Kodiak

If this CSH passed the constitutional test, increasingly

divisive and overtly discriminatory conditions would almost

certainly be imposed on future community harvest hunts by a BOG

that clearly does not understand the Constitution and who

desperately want to do "what's right" [Exc. 314] and provide a

rural priority. According to A.S. 16.05.940(28) (32) (33), AS

16.05.258(b) (4) (B) (ii), 5 A.A.C. 99.010(c), AS 16.05.258(C) (i-

13), the Board is only following the law. Does this Court truly

lack any authority to order these admittedly unconstitutional

laws stricken?

While it is theoretically possible to identify many

distinct use patterns on any subsistence resource, the

subsistence law, the constitutional equal access provisions, and

this Court's binding precedent mandate that all Alaskans be

treated equally at the Tier I level. By simply leaving the

various classes of Tier I uses arguably open to admission, the

Board cannot validate a discriminatory Tier I allocation scheme

that by intent, design, and implementation, confers preferential

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opportunities to those Alaskans deemed superior.

Neither the State, nor Ahtna, have presented persuasive

arguments regarding the unconstitutionality of A.S.

16.05.330(c), therefore, AFWCF stands by the arguments presented

in its initial brief.

III. CONCLUSION

Defining different classes of subsistence users based on a

_pattern" of use defined by local indigenous cultural traditions

defies the clear intent language and previous judicial analysis

of the common use clause of the Alaska Constitution.

Establishing a preferred use pattern defined by local residence

and cultural traditions, and then exclusively allocating

subsistence resources to users who subscribe to that use

pattern, discriminates between Alaskans who harvest game as a

personal food source.

While the current harvestable surplus of Nelchina moose and

caribou allows for separate (but unequal) Tier I subsistence

hunts, a validation of this CSH will lead to a situation where

the entire harvestable surplus of subsistence moose and caribou

are fully allocated to communities who subscribe to the

preferred _pattern" of use for any particular area. This Court

should never endorse any government entity enforcing laws that

recognize one set of cultural values to be superior over

another, particularly when, as here, the entity is allocating a

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publicly owned resource under the public trust doctrine. This

is institutionalized discrimination. No government entity

should consider one set of cultural values to be superior over

another's set of cultural values, particularly when allocating

publicly owned resources. This discriminatory scheme, and the

Board's findings and public comments in support of this scheme,

are hard to distinguish from arguments made in the civil rights

era when similarly situated citizens were provided separate

water fountains or assigned separate seats on a public bus.

The Copper Basin CSH is a discriminatory scheme, intended

to advance a subsistence management regime that benefits a

perceived superior class of Alaskans, at the expense of all

other Alaskans, with respect to harvesting a commonly owned and

plentiful Tier I resource. This Court has never tolerated such

discrimination in the 26 years since the Madison decision, and

should not do so now.

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borgeson & kramer, p.c. in the supreme court for the … · i l i i! i! i i i i i i i i i i i...

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