State v. Arnariak

SHORTELL, Justice pro tem,

dissenting.

I dissent from the court’s decision because I do not agree that a broad reading of the MMPA’s preemption clause would frustrate the act’s purpose and be contrary to Congress’s intent. Op. at 158. The MMPA’s preemption clause prohibits Alaska from enforcing any state law or regulation “relating to” the taking of walruses.1 16 U.S.C. § 1379(a). By referring to the MMPA’s legislative history, the court interprets “relating to” narrowly and concludes that the MMPA does not preempt Alaska regulations aimed at protecting marine mammals. Op. at 157-158. The court also discards a line of cases in which the United States Supreme Court consistently has interpreted the words “relating to” in preemption clauses to “express a broad pre-emptive purpose.” Morales v. Trans World Airlines, Inc., 504 U.S. 374, 383, 112 S.Ct. 2031, 2037, 119 L.Ed.2d 157 (1992). I do not agree that the MMPA’s legislative history provides an authoritative basis for deviating from this well-established rule of construction. Nor do I agree that the “clear statement doctrine” requires a narrow interpretation of “relating to.” Thus, I *161would affirm the court of appeals’ decision by interpreting “relating to” broadly and concluding that the MMPA preempts all Alaska regulations “relating to the taking of’ walruses, even if those regulations protect walruses.

A. The Structure and Legislative History of the MMPA Mandate a Broad Interpretation of “Relating to” in § 1379.

To conclude that preempting Alaska’s walrus sanctuary regulations would be contrary to Congress’s intent, the court assumes that the overriding purpose of the MMPA is to protect marine mammals. Op. at 157-158. Certainly, marine mammal protection is the “major objective” of the act. 16 U.S.C. § 1361(2). However, protection was not Congress’s exclusive objective. Instead, the MMPA’s structure and legislative history indicate that several objectives concerned Congress when it enacted the MMPA. For example, Congress structured the act to provide a balance between protecting marine mammals and addressing the needs of Alaska Natives by imposing a moratorium on taking marine mammals, but providing a limited exemption from the moratorium for Alaska Natives. See 16 U.S.C. § 1371(a)-(b).

The MMPA’s legislative history reflects this balance. The preamble to the report accompanying the House bill that became the MMPA states that the bill was drafted “to protect marine mammals; to establish a Marine Mammal Commission; and for other purposes.” H.R.Rep. No. 92-707 (1971), reprinted in 1972 U.S.C.C.A.N. 4144, 4144 [hereinafter H.R.Rep.] (emphasis added). That report further elucidates the variety of concerns motivating the bill by outlining the “concepts” addressed by the bill’s provisions. Id. at 4151. On the one hand, the report recognizes the protective functions of the bill: “Before any marine mammal may be taken, the appropriate Secretary must first establish general limitations on the taking, and must issue a permit which would allow that taking.” Id. On the other hand, “[t]he bill establishes reasonable protection for Alaskan natives taking marine mammals for purposes of food or clothing, where the primary purpose is not commercial sale.” Id.

No portion of the act or its legislative history suggests that Congress intended to permit Alaska to enforce regulations that would upset this balance, even if those regulations provided strong protections for marine mammals. Indeed, a narrow interpretation of the MMPA’s preemption clause would thwart specific provisions included in § 1379(b)(1) of the MMPA to ensure that no state law would frustrate any of the multiple objectives addressed in the act. Section 1379(b)(1) sets forth several criteria that a state must meet before gaining authority to enforce its laws relating to the taking of walruses. Of those criteria, the very first requires states to have developed “a program for the conservation and management of [walruses] that ... is consistent with the purposes, policies, and goals of this chapter.” 16 U.S.C. § 1379(b)(1)(A) (emphasis added). Under the court’s ruling, a state such as Alaska that has not attained management authority for walruses could nevertheless enforce regulations that do not conform to all of the MMPA’s purposes, policies, and goals so long as those regulations protect walruses. Congress surely could not have intended to allow Alaska to make such an end run around the requirements of § 1379(b)(1).

The legislative history upon which the court relies also supports a broad reading of § 1379(a). The court points out that the House of Representatives report accompanying the bill that later became the MMPA states: “There is no intention or desire within the Committee to remove any incentive from the states to carry out necessary research or to protect animals residing within their jurisdictions.” Op. at 157 n. 3. However, that language does not compel the interpretation of § 1379 espoused by the court. If the MMPA preempted Aaska’s walrus sanctuary regulations, Alaska would continue to have a strong, if not stronger, incentive to enact laws that conform to the objectives of the MMPA. In fact, only by enacting such laws could Alaska regain the power to manage the marine mammals within its borders. See 16 U.S.C. § 1379(a)-(b)(l).

*162Moreover, the context of the sentence cited by the court indicates that Congress intended to permit states to enforce their laws so long as they do so in a way that is consistent with the MMPA. The sentence the court cites appears immediately after a sentence that provides: “The bill permits and indeed requires the development of an extensive management program in the agencies concerned, with full opportunity for cooperative federal-state management programs designed to carry out the purposes and policies of the act.” H.R.Rep., supra p. 2, at 4151. Therefore, I disagree with the majority’s conclusion that this portion of the legislative history suggests a congressional intent to allow Alaska to enforce measures that ignore all but the protective functions of the MMPA.

The court also refers to a portion of the House report’s section-by-section analysis, which states that “[i]t is not the intention of this Committee to foreclose effective state programs and protective measures such as sanctuaries.” Op. at 157. This part of the section-by-section analysis relates to section 109 of the House bill. H.R.Rep., supra p. 2, at 4161. However, Congress did not enact the House’s version of section 109. Conf. Rep. No. 92-1488 (1971), reprinted in 1972 U.S.C.C.A.N. 4187, 4188. Instead, a House and Senate conference committee modified the House’s version of section 109 to conform to amendments proposed by the Senate. Id. Thus, the portion of the legislative history cited by the court is of limited value in interpreting Congress’s intent.

A more appropriate gauge of Congress’s actual intent is the legislative history discussing the conference committee’s version of section 109. The conference report explains:

The House bill preempted State law, but allowed cooperative agreements with the States in harmony with the purposes of the Act. The Senate amendment allowed the Secretary to review State laws and to accept those that are consistent with the policy and purpose of the Act. The conference substitute clarifies the Senate version to assure that the Secretary’s determination will control as to whether or not the State laws are in compliance. Once granted authority to implement its laws relating to marine mammals, the State concerned may issue permits, handle enforcement, and engage in research.

Id. at 4190. Thus, rather than supporting the court’s interpretation of § 1379(a), this portion of the legislative history is consistent with the view that Congress intended to preempt state laws that are inconsistent with the multiple policies and objectives of the act.

Finally, the court refers to § 1361, which provides that the MMPA “is designed to protect marine mammals ‘to the greatest extent feasible.’ ” Op. at 157. However, this language is not inconsistent with the view that Congress sought to protect marine mammals while also addressing concerns it had about Alaska Natives. Congress expressly qualified the protection it was willing to provide marine mammals with the nebulous expression “to the greatest extent feasible.” 16 U.S.C. § 1361(6). Although Congress never explained when protection would not be “feasible,” the phrase reasonably could be interpreted to mean that protecting marine mammals is not “feasible” when such protection conflicts with Congress’s other concerns expressed in the MMPA. It is difficult to imagine that by this one imprecise phrase Congress intended to permit state laws that might frustrate one of the MMPA’s objectives.

Thus, I conclude that the structure and legislative history of the MMPA do not support the court’s interpretation of “relating to” in § 1379(a). Congress consistently indicated that the MMPA would preempt state laws so that no law would upset the balance that Congress struck between competing interests. I cannot agree with the court’s narrow interpretation of “relating to” because it would permit Alaska to protect marine mammals at the expense of some of the other interests that Congress recognized when it enacted the MMPA.2

*163B. Under a Broad Interpretation of § 1379(a), 5 Alaska Administrative Code (AAC) 92.066 Relates to the Taking of Walruses.

As § 1379(a) preempts state protective measures that relate to the taking of walruses, the question becomes whether 5 AAC 92.066, the particular regulation under which the State charged the Arnariaks, falls within the ambit of § 1379(a). The MMPA defines “take” as “to harass, hunt, capture, or kill, or attempt to harass, hunt, capture, or kill any marine mammal.” 16 U.S.C. § 1362(12). It does not define “relating to.” And, aside from the court of appeals’ decision in this ease, no court has clarified the meaning of “relating to” in § 1379(a). However, in examining similar provisions in the Employee Retirement Income Security Act (ERISA) and the Airline Deregulation Act (ADA), the United States Supreme Court consistently has employed the broad, ordinary meaning of the words: “to stand in some relation; to have bearing or concern; to pertain; refer; to bring into association with or connection with.” Morales v. Trans World Airlines, Inc., 504 U.S. 374, 383-84, 112 S.Ct. 2031, 2037, 119 L.Ed.2d 157 (1992) (quoting Black’s Law Dictionary 1158 (5th ed. 1979)).3

These authorities persuade me that the regulations at issue in this case relate to the taking of walruses. Those regulations are part of a regulatory structure intended to establish and maintain a wildlife sanctuary on the Walrus Islands, including Round Island. See 5 AAC 92.066. The State correctly points out that “[s]hortly after statehood, Alaska’s Legislature created the sanctuary because it found that the Walrus Islands were the sole remaining place in Alaska where walruses annually haul out on land.” See Ch. 115, § 1, SLA 1960. The regulations, thus, protect the Round Island walruses by prohibiting hunting on Round Island, establishing procedures to control access to the island, and ensuring that visitors do nothing to compromise wildlife habitats or otherwise disturb or harass wildlife present on the island. See 5 AAC 92.066; 5 AAC 92.510(13).

The regulations at issue in this case relate to the taking of walruses because they are part of this protective statutory and regulatory structure. Indeed, the similarities between the MMPA’s definition of “take” and the actions prohibited by 5 AAC 92.066 are striking because both prohibit persons from harassing, killing, or removing walruses. Compare 5 AAC 92.066(2) with 16 U.S.C. § 1362(12). And, the permit requirement and the firearm restriction in 5 AAC 92.066 exist to protect walruses from such activities. See 5 AAC 92.066. Therefore, I dissent from the court’s view that 5 AAC 92.066 is not a regulation “relating to the taking of’ walruses for preemption purposes.

C. The Takings Clause Does Not Require the Court’s Interpretation of § 1379(a).

I do not agree with the court that potential Takings Clause issues compel an interpretation of § 1379(a) that would permit the State to enforce 5 AAC 92.066. Op. at 158. I agree that a taking in the constitutional sense might occur if the MMPA limited the State’s right to exclude others from its property to the same extent as the government action in Nollan v. California Coastal Comm’n, 483 U.S. 825, 107 S.Ct. 3141, 97 L.Ed.2d 677 (1987).4 But I disagree that *164§ 1379(a) would create a “permanent physical occupation” in the sense that the Court used that term in Nollan, 483 U.S. at 832, 107 S.Ct. at 3146, if § 1379(a) were interpreted to preempt 5 AAC 92.066.

The State argues that “the Court of Appeals’ construction of the MMPA ... com-pelías] [the State] to suffer uncontrolled, unwanted physical invasion of its property, without recourse.” This position makes no distinction between the State’s power to enforce the permit requirement in 5 AAC 92.066 and its general power to prevent trespass. I disagree that these two powers are coextensive.

All property owners possess a common law right to prevent trespasses upon their land. See Brown Jug, Inc. v. International Bhd. of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Local 959, 688 P.2d 932, 938 (Alaska 1984); Restatement (Second) of Torts §§ 163-65 (1965) (describing liability for intentional, mistaken, reckless, and negligent trespass to land). The State’s power to enforce this right, of course, exists separately from the State’s power to prosecute violations of 5 AAC 99.066. Therefore, the issue is whether § 1379(a) necessarily preempts the State’s general right to prevent trespass if, as I have concluded previously, that provision preempts 5 AAC 92.066.

Although the United States Supreme Court has interpreted preemption clauses like § 1379(a) broadly, it has recognized limits to the reach of such clauses.5 See Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 139, 111 S.Ct. 478, 483, 112 L.Ed.2d 474 (1990) (“Notwithstanding its breadth, we have recognized limits to ERISA’s pre-emption clause.”). For example, in Mackey v. Lanier Collection Agency & Serv., 486 U.S. 825, 829, 831-38, 108 S.Ct. 2182, 2186-90, 100 L.Ed.2d 836 (1988), the Court examined whether ERISA’s preemption clause, which supersedes all state laws that “relate to any employee benefit plan,” preempted a state’s general garnishment statute that was applied to collect judgments against participants in employee benefit plans. The Court noted that the garnishment statute was generally applicable and did not refer to ERISA plans of any kind. Id. at 831,108 S.Ct. at 2186. It also reasoned that ERISA could not preempt the garnishment statute without creating an unreasonable result because preemption would mean that a party would have no way to enforce a judgment that it might win in certain suits expressly authorized by ERISA. Id. at 834, 108 S.Ct. at 2187-88. Therefore, it concluded that ERISA did not preempt the garnishment statute. Id. at 841, 108 S.Ct. at 2191-92.

In this case, interpreting § 1379(a) to preempt the State’s general right to prevent trespass might very well create an unreasonable result. If the State could not enforce that general right, the Arnariaks might be able to take a walrus located in a high security area or even a zoo, so long as the State owned the land in question. Congress surely could not have intended such an absurd result. See Norman J. Singer, 2A Sutherland Statutory Construction § 46.07 (5th ed. 1991) (stating that statutes should be construed to avoid absurd results).

Thus, the MMPA cannot reasonably be interpreted to prevent the State from using its general right to prevent trespass to ex-*165elude persons from Round Island. Interpreted in this way, § 1379(a) would not violate the Takings Clause. If § 1379(a) is not so broad as to supersede the State’s ability to enforce its general right to prevent trespass, the MMPA would not unconstitutionally impinge on the State’s right to exclude others from its property.6

D. The “Clear Statement Doctrine” Does Not Require the Court’s Interpretation of§ 1379(a).

Finally, I disagree that the “clear statement doctrine” as articulated in Totemoff v. State, 905 P.2d 954 (Alaska 1995), supports the court’s interpretation of § 1379(a). In Totemoff, this court determined whether the Alaska National Interest Lands Conservation Act (ANILCA) deprived the State of criminal jurisdiction over a hunter who, contrary to a state ban on hunting with the aid of a spotlight, shot a deer on federal land from a skiff located in navigable waters. Totemoff 905 P.2d at 957-58. This court noted that State jurisdiction could be “established either by finding that the State has the power to apply the spotlighting ban to subsistence hunters on federal land, or by determining that the State has exclusive jurisdiction over the navigable waters from which [the hunter] fired his rifle.” Id.

In determining whether the State has the power to apply the spotlighting ban on federal land, the court examined whether ANIL-CA preempted the state hunting regulation. Id. at 958. It noted that ANILCA does not contain an express preemption clause. Id. at 959. Moreover, the court’s opinion contains no discussion of legislative history that refers to preemption of any nature, suggesting that ANILCA’s legislative history makes no such specific mention. Indeed, the court recognized that ANILCA states: “Nothing in this Act is intended to enlarge or dimmish the responsibility and authority of the State of Alaska for management of fish and wildlife on the public lands except as may be provided in [Title VIII] of this chapter.” Id. at 959. Under these circumstances, it is not surprising that the court found Congress had not expressed a “clear and manifest” intent to create a federal regulatory scheme “so pervasive that there would be no room for state regulation to supplement it.” Id.

As to whether the State had exclusive jurisdiction over navigable waters, the court examined whether ANILCA gives the federal government the power to regulate hunting in navigable waters. Id. at 962. Because neither ANILCA nor its legislative history apparently contained any express authority for resolving this issue, the court resorted to determining whether federal jurisdiction could be inferred from the language of AN-ILCA. See id. at 962-68.

Thus, the issue became whether ANIL-CA’s definition of “public lands” includes navigational servitudes and reserved water rights belonging to the United States. Id. at 961-68. If it did, ANILCA might have prevented the state from enforcing the spotlighting law. Id. at 957-58, 961. The court noted that ANILCA defined “land” as “lands, waters, and interests therein.” Id. at 962. It concluded that the state law was not preempted for several reasons, one of which was that use of the word “interests” in the definition of “land” was not a sufficiently clear and definite statement of Congress’s intent to make the federal government responsible for regulating hunting and fishing, in Alaska’s navigable waters. Id. at 964.

Unlike ANILCA, the MMPA contains an express preemption clause, and this clause is clarified by the MMPA’s structure and legislative history. As discussed in Part A, the preemption clause in § 1379(a) works in conjunction with the criteria in § 1379(b)(1) for *166transferring authority to Alaska for managing walruses. Specifically, subsection (a) preempts state laws and regulations relating to walrus taking “unless the Secretary has transferred authority for the conservation and management of [walruses] ... to the State under subsection (b)(1) of this section.” 16 U.S.C. § 1379(a). This relationship between subsection (a) and subsection (b)(1) suggests that subsection (a) must preempt those types of laws and regulations that would be inconsistent with the criteria in subsection (b)(1). Otherwise, the criteria in subsection (b)(1) would have little import.7

Of particular importance to this case, the very first criterion in subsection (b)(1) requires states to have developed “a program for the conservation and management of [walruses] that ... is consistent mth the purposes, policies, and goals of this chapter.” Id. § 1379(b)(1)(A) (emphasis added). As explained in Part A, the language, structure, and legislative history of the MMPA demonstrate that Congress intended to preempt any state law that relates to walrus taking and is inconsistent with the multiple objectives of the act. Because Congress specifically indicated that it balanced the need to protect mammals with the desire to recognize Native subsistence needs, I conclude that Congress’s intent is sufficiently “clear and definite” to preempt the regulation at issue in this case.

Guided by the MMPA’s language and legislative history and the United States Supreme Court’s interpretation of preemption clauses similar to the one at issue in this case, I would interpret § 1379(a) to preempt 5 AAC 92.066 but to permit the State to enforce its general right to prevent trespass. Thus, I would affirm the court of appeals’ decision.

. The preemption clause provides:

No State may enforce or attempt to enforce, any State law or regulation relating to the taking of any species ... of marine mammal within the State unless the Secretary has transferred authority for the conservation and management of that species ... to the State under subsection (b)(1) of this section.

16 U.S.C. § 1379(a). The State does not dispute the court of appeals' conclusion that "[t]he federal government has not transferred management authority for marine mammals to the State of Alaska.” State v. Amariak, 893 P.2d 1273, 1275 (Alaska App.1995).

. In a footnote, the court refers to legislative history concerning Alaska Native subsistence taking and concludes that Congress intended to protect present levels of taking without expanding hunting areas. Op. at 157 n. 4. That portion of the legislative history states that "[t]he confer-encees were ... not disposed unilaterally to terminate the present levels of taking by Alaskan *163Indians, Aleuts and Natives of marine mammals.” Conf.Rep. No. 92-1488 (1971), reprinted in 1972 U.S.C.C.A.N. 4187, 4188. Just because Congress did not want to terminate "present levels” does not necessarily mean Congress intended to bar any increase in the level of Native subsistence taking. However, even if Congress did have that intent, maintaining current levels of taking does not require the size of hunting areas to stay the same. That is, the size of hunting areas may fluctuate independently from levels of taking.

. In his concurring opinion, Justice Rabinowitz cites California Division of Labor Standards En-forcemeat v. Dillingham Construction, N.A., — U.S. —, 117 S.Ct. 832, 136 L.Ed.2d 791 (1997), for the proposition that "relating to” need not be read broadly. In that case, the United States Supreme Court reaffirmed its view that “relate to” in ERISA is "clearly expansive,” has a "broad scope,” and is "conspicuous for its breadth.” Dillingham, — U.S. at —, 117 S.Ct. at 837 (citations omitted).

. In Nollan v. California Coastal Comm’n, 483 U.S. 825, 107 S.Ct. 3141, 97 L.Ed.2d 677 (1987), the Court noted that

where governmental action results in “[a] permanent physical occupation” of the property. *164by the government itself or by others, "our cases uniformly have found a taking to the extent of the occupation, without regard to whether the action achieves an important public benefit or has only minimal economic impact on the owner.”

Id. at 831-32, 107 S.Ct. at 3146 (quoting Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 432-35, 102 S.Ct. 3164, 3174-76, 73 L.Ed.2d 868 (1982) (citations omitted)). Then, it determined that

a “permanent physical occupation” has occurred, for purposes of that rule, where individuals are given a permanent and continuous right to pass to and fro, so that the real property may continuously be traversed, even though no particular individual is permitted to station himself permanently upon the premises.

Id. at 832, 107 S.Ct. at 3146.

. The "relating to" language poses a difficult interpretational issue because "as many a curbstone philosopher has observed, everything is related to everything else.” California Div. of Labor Standards Enforcement v. Dillingham Constr., N.A., — U.S. —, —, 117 S.Ct. 832, 843, 136 L.Ed.2d 791 (1997) (Scalia, J„ concurring). The problem, therefore, is to find a limit to language that appears, at first glance, to be unlimited.

. The general right to prevent trespass is distinguishable from the walrus sanctuary regulations. The MMPA preempts "any state law or regulation relating to the taking of” walruses. 16 U.S.C. § 1379(a). Based upon this language, the proper inquiry is whether the law or regulation itself, rather than a reason for enforcing it, relates to walrus taking. As discussed in Part B, the walrus sanctuary regulations themselves relate to taking because they are part of a regulatory structure specifically intended to establish and maintain an area to protect Round Island walruses from the same type of activities that the MMPA characterizes as "taking.” Because the general right to prevent trespass does not share these features, it is critically different from the walrus sanctuary regulations.

. This court has stated: "As a general rule, a 'statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant.’ " Homer Elec. Ass'n. v. Towsley, 841 P.2d 1042, 1045 (Alaska 1992) (quoting Alascom, Inc. v. North Slope Borough, Bd. of Equalization, 659 P.2d 1175, 1178 n. 5 (Alaska 1983)).