This appeal concerns a regulation promulgated by the Alaska Board of Fisheries (the Board) allocating the number of chinook (king) salmon that may be harvested by commercial seiners and gillnetters, commercial trollers, and sport fishers in southeast Alaska. This appeal presents three questions. First, does the allocative regulation promulgated by the Board violate the policies expressed in Article VIII of the Alaska Constitution? Second, in promulgating this regulation, did the Board consider the relevant criteria and take a "hard look" at the salient problems involved? Third, is a decisional document supporting the regulation required, and if not, is the record sufficient to support the Board's adoption of the regulation? We determine that the superior court answered all three of these questions correctly, and affirm its grant of summary judgment to the Board.
The Pacific Salmon Treaty took effect in 1985. See Fisheries: Pacific Salmon, Treaty Between the United States of America and Canada, Jan. 28, 1985;
Alaska Department of Fish and Game data show that the sport fishers' catch of chinook gradually increased until the Board imposed ceilings.
In November 1991, the Alaska Trollers Association requested that the Board amend 5 AAC 33.365 (the Southeast Alaska-Yakutat Chinook and Coho Salmon Troll Fisheries Management Plan) to allocate a percentage of the Treaty chinook salmon quota to commercial trollers. After four days of public hearings and lengthy deliberations, the Board voted to allocate Treaty chinook between the commercial troll and sport fisheries. After deducting the 20,000 chinook allocated to the commercial net fishers, 83 percent of the remainder was allocated to the troll fishery and 17 percent to the sport fishery. Subsequently the Board adopted regulations implementing its allocation decision:
5 AAC 46.055(a)-(b).
Thereafter, the Tongass Sport Fishing Association, together with other sport fishing organizations, associations of charter-boat operators, and an association of lodge and resort owners (collectively Tongass) brought suit challenging the Board's regulation.
II. DOES THE BOARD'S ALLOCATION REGULATION VIOLATE THE POLICIES EXPRESSED IN ARTICLE VIII OF THE ALASKA CONSTITUTION?
Tongass argues that article VIII of the Alaska Constitution, particularly the "common use" clause of section 3 and the "no exclusive right of fishery" clause of section 15, embodies a clear policy in favor of general public access to the natural resources of the state, with no special privilege accorded to any individual group.
The Board of Fisheries was created for the purposes of conservation and development of the state's fishery resources. AS 16.05.221(a). In Kenai Peninsula Fisherman's Cooperative Ass'n v. State, 628 P.2d 897, 903 (Alaska 1981), we held that concepts of "conserving" and "developing" fishery resources necessarily include the concepts of managed utilization and thus allocation of these resources. See also Alaska Fish Spotters v. State, Dep't of Fish & Game, 838 P.2d 798, 800 (Alaska 1992). In Meier v. State, Board of Fisheries, 739 P.2d 172, 174 (Alaska 1987), we stated that the Board's "duty to conserve and develop fishery resources implies a concomitant power to allocate fishery resources among competing users." We also held that the Board's authority encompasses the power to allocate a fishery resource between two competing subgroups of commercial users. Id. at 174 (upholding Board allocation of
We have held that the "common use" clause of article VIII, section 3, the "no exclusive right of fishery" clause of section 15, and the "uniform application" clause of section 17 are not implicated unless limits are placed on the admission to resource user groups. McDowell v. State, 785 P.2d 1, 8 & n. 14 (Alaska 1989); see also Owsichek v. State, Guide Licensing & Control Bd., 763 P.2d 488, 492 (Alaska 1988). Article VIII limitations on the state's power to restrict access to natural resource user groups do not apply to the state's authority to allocate fishery resources among sport, commercial, and subsistence users.
628 P.2d at 904.
On the basis of these authorities we conclude that the Board possessed the authority to allocate Treaty chinook between sport and commercial users. The Board's allocation decision was not a limitation on admission to a particular user group. Therefore, we hold that the regulation is not violative of the "common use" or "no exclusive right of fishery" clauses of article VIII of the Alaska Constitution.
Furthermore, the regulation does not conflict with the "uniform application" clause of article VIII. Since sport and commercial users are not similarly situated, the uniform application clause is not implicated. Gilbert, 803 P.2d at 399.
III. IN PROMULGATING THE REGULATION, DID THE BOARD CONSIDER RELEVANT CRITERIA AND TAKE A "HARD LOOK" AT THE CONFLICTING FACTORS IN MAKING ITS ALLOCATION DECISION?
The legislature has authorized the Board to adopt regulations that the Board considers advisable for "regulating commercial, sport, guided sport, subsistence, and personal use fishing as needed for the conservation, development, and utilization of fisheries." AS 16.05.251(a)(12). The legislature also directed the Board to establish criteria for the allocation of fishery resources among personal use, sport, and commercial fishing. AS 16.05.251(e).
Id. In response to this legislation the Board adopted 5 AAC 75.017:
Tongass asserts that the Board failed to follow the criteria set out in AS 16.05.251(e) and 5 AAC 75.017 in adopting its allocational regulation. The essence of Tongass's argument is that although the Board members were aware of the relevant criteria, and some members did mention criteria from time to time, there is no indication in the record that the Board ever weighed the criteria in making its allocation decision. As Tongass notes, an agency must at least consider all relevant criteria. See State, Dep't of Transp. & Pub. Facilities v. 0.644 Acres, More or Less, 613 P.2d 829, 833 n. 13 (Alaska 1980).
Upon its review of the transcript of the four-day hearing and the Board's deliberations, the superior court found that the Board had considered the relevant statutory criteria. Review of the record leads us to the same conclusion. The record shows that during a full day of deliberations following the hearings the Board did consider the relevant criteria before reaching its allocation decision.
In making its allocation decision the Board was required to take a "hard look" at the salient problems and to engage in reasoned decisionmaking. Gilbert, 803 P.2d at 398; Trustees for Alaska v. State, Dep't of Natural Resources, 795 P.2d 805, 809 (Alaska 1990); Alaska Survival v. State, Dep't of Natural Resources, 723 P.2d 1281, 1287 (Alaska 1986). Our review of the record persuades us that the Board did take a hard look at the salient problems affecting the southeast Treaty chinook harvests and engaged in reasoned decisionmaking in reaching its allocation decision. There is no evidence that the Board's allocation was unreasonable or arbitrary. It is not our function to examine the wisdom of the allocation regulation. Gilbert, 803 P.2d at 397; Meier, 739 P.2d at 174.
IV. IS A DECISIONAL DOCUMENT REQUIRED? IF NOT, IS THE RECORD SUFFICIENT TO SUPPORT THE BOARD'S ALLOCATION DECISION?
Tongass asks us to invalidate the Board's allocation regulation because the Board did not publish a decisional document in its support. Effective judicial review requires that an agency adequately discuss the basis of a regulation:
Alaska Fish Spotters Ass'n v. State, Dep't of Fish & Game, 838 P.2d 798, 801 (Alaska 1992).
We have expressly held that decisional documents are not required in the circumstances where an agency exercises its rulemaking powers. Johns v. Commercial Fisheries Entry Comm'n, 758 P.2d 1256, 1260-61 (Alaska 1988); see also State v. Hebert, 743 P.2d 392, 396-97 (Alaska App. 1987). We are not persuaded by Tongass's arguments that we should modify Johns to require a decisional document from an administrative agency when it exercises its (quasi-legislative) rulemaking authority. As noted in the previous section, the record in this case indicates that the Board took a hard look at the relevant and often competing salient factors in making its allocation decision and that its decision reflects reasoned decisionmaking. Adoption of a decisional document requirement is unnecessary and would impose significant burdens upon the Board.
Article VIII, section 2 provides:
Article VIII, section 3 provides:
Article VIII, section 4 provides:
Article VIII, section 15 provides:
Article VIII, section 17 provides: