Here is the opinion in The Alaska Fish & Wildlife Conservation Fund v. State, Dept. of Fish & Game, Board of Fisheries.
In 1999, the Board of Fisheries (the Board) made a positive customary and traditional use finding in the Chitina subdistrict for the first time, thereby changing it from a “personal use” to a “subsistence” fishery. The Board reversed this decision in 2003, returning Chitina to a personal use fishery. The Alaska Fish and Wildlife Conservation Fund (AFWCF) and the Chitina Dipnetters Association, Inc., after asking the Board to reconsider its 2003 finding in both 2005 and 2008,1 brought this suit to challenge the Board’s negative customary and traditional use finding for Chitina. They claimed that the regulation used by the Board to make such a finding, 5 Alaska Administrative Code (AAC) 99.010(b), was unconstitutional on its face and as applied. The superior court held that the regulation was valid and constitutional, but remanded for the Board to fully articulate the standard being used in its application of 5 AAC 99.010(b)(8). It also instructed the Board not to consider “the per capita consumption of wild food in the home community of various users” upon remand. On remand, the Board codified a definition of “subsistence way of life,” allowed the parties to submit evidence, and upheld its previous classification. Because 5 AAC 99.010(b) is consistent with its authorizing statutes, is reasonable and not arbitrary, does not violate the Alaska Constitution’s equal access provisions, and was constitutionally applied when the Board made its customary and traditional use finding for the Chitina fishery in 2003, we affirm this portion of the superior court’s rulings. Because there is no indication that the Board actually relied on the per capita consumption of wild foods in the users’ home communities when applying 5 AAC 99.010(b) and because that information may be relevant to the subsistence inquiry, we reverse this ruling by the superior court.